author: Fuld, J. Chief Judge Desmonto (concurring). Froessel, J. (dissenting).

text:
    The People of the State of New York, Appellant, v. Richmond County News, Inc., Respondent.
    Argued March 23, 1961;
    decided May 25, 1961.

      John M. BraAsted, Jr., District Attorney (Thomas R. Sullivan of counsel), for appellant.
    I. There was ample evidence before the trial court to find the scienter required by Smith v. California (361 U. S. 147). II. There was sufficient evidence before the trial court that defendant had actual knowledge of the contents of the magazine in question. III. Defendant sought to systematically insulate itself from knowledge as to the contents of the magazines it distributes. (People v. Schehkman, 20 Misc 2d 1093). IV. Section 1141 of the Penal Law is constitutional. (Winters v. New York, 333 U. S. 507; People v. Shapiro, 6 A D 2d 271; People v. Finkelstein, 12 A D 2d 457.)

      Jacob Weidenbaum for respondent.
    I. Section 1141 of the New York Penal Law is unconstitutional because, by failing to provide for scienter as an element of the crime, it violates the due process clause of the Fourteenth Amendment. (Smith v. California, 361 U. S. 147.) II. Assuming that scienter is an implied part of section 1141 of the Penal Law, plaintiff-appellant failed to prove scienter or knowledge on the part of defendant-respondent. (People v. Engel, 7 N Y 2d 1002; Smith v. California, 361 U. S. 147.) III. The trial court erred in excluding appropriately offered testimony and other forms of evidence regarding prevailing community standards as to obscenity. IV. The publication at issue is not obscene. (Roth v. United States, 354 U. S. 476; Grove Press v. Christenberry, 175 F. Supp. 488; One, Inc., v. Olesen, 355 U. S. 371; Sunshine Book Co. v. Summerfield, 355 U. S. 372; Times Film Corp. v. City of Chicago, 355 U. S. 35; Sunshine Book Co. v. Summerfield, 128 F. Supp. 564, 249 F. 2d 114.)
   Fuld, J.

Charged by an information with selling and distributing an allegedly obscene magazine in violation of section 1141 of the Penal Law, the defendant Richmond County News, Inc., was convicted in the Court of Special Sessions of the City of New York. Upon appeal, the conviction was reversed and the information dismissed; although the Appellate Division agreed with the trial court that the magazine was obscene, it decided that the proof failed to establish that the defendant had knowledge of the magazine’s obscene character.

We believe that the reversal was required, but for a different reason. It is our view that the magazine is not obscene and, accordingly, we do not reach the question as to the kind of knowledge required for a conviction under this statute or the question whether the evidence would justify a finding that such knowledge existed.

The defendant is a wholesaler of magazines, paper-covered books and newspapers. Among the 700-odd items carried by the defendant, which it receives from national distributors, was the magazine ‘ Gent ’ ’, and it was the sale and distribution of its April,- 1957 issue which occasioned the prosecution under section 1141.

The photocover of ‘ ‘ Gent ’ ’ is similar to that of numerous other magazines which loudly proclaim their dedication to coarse sensuality. The contents, like the cover, exhibit the same attempt to pander to and commercialize upon man’s taste for the bawdy and the ribald behind a bare disguise of aesthetic respectability. Thus, together with short stories of apparent literary merit, reprinted with permission from standard editions of the authors’ works, which are inoffensive under any standard of sexual sensitivity, there appear the usual staples of this form of sexual provocation, including “ artistic ” photographs, salacious cartoons and short stories of sexual seduction.

The courts below have characterized the magazine as 1 ‘ obscene ’ ’, but whether that finding is justified requires us — despite contrary intimations in some of our decisions (see People v. Pesky, 254 N. Y. 373; People v. Muller, 96 N. Y. 408, 410) — to make an independent constitutional appraisal of the magazine. This court, as the State’s highest tribunal, no less than the United States Supreme Court, cannot escape its responsibility in this area ‘1 by saying that the trier of the facts, be it a jury or a judge, has labeled the questioned matter as ‘ obscene, ’ for, if ‘ obscenity ’ is to be suppressed, the question whether a particular work is of that character involves not really an issue of fact but a question of constitutional judgment of the most sensitive and delicate kind.” (Roth v. United States, 354 U. S. 476, 497-498 [Harlan, J., concurring]; see, also, Feiner v. New York, 340 U. S. 315, 316; Watts v. Indiana, 338 U. S. 49, 51; Norris v. Alabama, 294 U. S. 587, 589-590; Lockhart and McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn. L. Rev. 5, 114-120.) It involves not a simple question of fact, but a mixed question of fact and constitutional law, calling upon the court to make an appraisal of a publication and its contents against the requirements embodied in both State and Federal Constitutions (N. Y. Const., art. I, § 8; U. S. Const., 1st and 14th Arndts.). Consequently, if an appellate court were to rely upon and be bound by the opinion of the trier of the facts as to the obscenity of a publication it would be abdicating its role as an arbiter of constitutional issues.

It is settled doctrine that a state may constitutionally convict those who publish, sell or keep for sale publications “ incontestably found to be obscene” without offending against the guarantees of the First Amendment. (Kingsley Books v. Brown, 354 U. S. 436, 440; Roth v. United States, 354 U. S. 476, 481, supra: Alberts v. California, 354 U. S. 476.) But the existence of the State’s power to prevent the distribution of obscene matter “ does not mean that there can be no constitutional barrier to any form of practical exercise of that power”. (Smith v. California, 361 U. S. 147, 155; see, also, Roth v. United States, 354 U. S. 476, 497-498, supra, Harlan, J., concurring.) Although the Constitution does not, therefore, stand as a barrier against legislation making obscenity criminal, it does stand as a limitation on such legislation of such a sort as to compel us to construe it strictly. The danger of a violation of cherished First Amendment rights necessitates narrow construction; we may open ‘ the door barring federal and state intrusion into this area * * * only the slightest crack necessary ”. (Roth v. United States, 354 U. S. 476, 488, supra.)

Whether we focus upon the historical development of social and judicial attitudes towards writings or art work dealing with sex, or whether we view the differences on this score among various groups within our contemporary society, we cannot help but be impressed by the extraordinary diversity which is manifest. Under these circumstances, we must interpret our statute to include only those prohibitions which find the widest acceptance, and which reflect the most universal moral sensibilities. “ The law”, said Judge Cabdozo, “.will not hold the crowd to the morality of saints and seers ” (Paradoxes of Legal Science, p. 37); nor, we would add, will it hold the crowd to the literary or artistic fashion of the hour.

An interest in upholding the legislation also demands that its impact be limited to its legitimate sphere, so that it will not be held applicable to the advocacy of ideas. The urging of doctrine, for instance, even if mischief would result were it followed, is within the protection of the Constitution. (See Yates v. United States, 354 U. S. 298, 318, 322; Dennis v. United States, 341 U. S. 494, 512-513.) And the mere fact that adulterous or other sexually immoral relationships are portrayed approvingly cannot serve as a reason for declaring a work obscene without running afoul of the First Amendment. (See Kingsley Pictures Corp. v. Regents, 360 U. S. 684, 688.) The Constitution protects ‘ ‘ advocacy of the opinion that adultery may sometimes be proper, no less than advocacy of socialism or the single tax” (Kingsley Pictures Corp. v. Regents, 360 U. S., at p. 689).

The same protection applies even if the material which is subject to prohibition is a form of entertainment, rather than an exposition of ideas, and even if we conclude that it is lacking in all social value. (See Winters v. New York, 333 U. S. 507, 510; Hannegan v. Esquire, Inc., 327 U. S. 146, 153, 158.) As the Supreme Court observed in the Winters case (333 U. S., at p. 510), “ What is one man’s amusement, teaches another’s doctrine. Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature.”

It is noteworthy that, despite the reams of material on the effect of books, magazines and other media of expression on sexual conduct, “ there is [very] little scientific evidence ” on the subject. (St. John-Stevas, Obscenity and the Law [1956], p. 196; see, also, Brown v. Kingsley Books, 1 N Y 2d 177, 181, n. 3 [affd. sub nom. Kingsley Books v. Brown, 354 U. S. 436]; United. States v. Roth, 237 F. 2d 796, 812-817, per Frank, J., concurring [affd. sub nom. Roth v. United States, 354 U. S. 476, supra].) Indeed, two authoritative writers in the field have concluded that, Although the whole subject of obscenity censorship hinges upon the unproved assumption that ‘ obscene ’ literature is a significant factor in causing sexual deviation from the community standard, no report can be found of a single effort at genuine research to test this assumption by singling out as a factor for study the effect of sex literature upon sexual behaviour ”. (Lockhart and McClure, Obscenity in the Courts, 20 Law and Contemporary Problems 587, 595; see, also, American Law Institute, Model Penal Code, Tentative Draft No. 6, § 207.10, p. 44.) Some commentators have gone even further and suggested that ‘1 for an undetermined number of individuals, the writing or reading of obscenity may be a substitute for rather than a stimulus to physical sexuality.” (American Law Institute, Model Penal Code, Tentative Draft No. 6, § 207.10, p. 24.)

Other writers, expressing a somewhat different view, argue that the obscenity laws themselves, in forbidding the publication, sale and distribution of obscenity, can have little effect on sexual crime or other anti-social conduct. Some studies seem to suggest that ‘ erotic responses ’ whether normal or abnormal, are as frequently evoked by objects and literature which are not, in the conventional sense, sexual as by the conventional sexual stimuli. (See Kinsey et al., Sexual Behavior in the Human Female [1953], pp. 669-670; Kinsey et al., Sexual Behavior in the Human Male [1948], p. 510.) And a survey made some years ago by the New York City Bureau of Social Hygiene showed that out of 409 college women who responded to the question inquiring what they found most sexually stimulating, 18 said “ pictures ”, 40 said “ drama ”, 95 said books ”, and 218 simply said “man”. (See Alpert, Judicial Censorship of Obscene Literature, 52 Harv. L. Rev. 40, 73.)

The argument on this score was incomparably stated some centuries ago by Milton in his immortal “ Areopagitica ”: ‘1 They are not skilful considerers of human things, who imagine to remove sin by removing the matter of sin * * * Though ye take from a covetous man all his treasure, he has yet one jewel left, ye can not bereave him of his covetousness. Banish all objects of lust, shut up all youth into the severest discipline that can be exercised in any hermitage, ye can not make them chaste, that came not thither so ”.

In alluding to these commentaries and studies which reflect upon the wisdom and validity of obscenity laws, we do not, of course, mean to approve their conclusions or to suggest that they provide a basis for overturning the statute before us. Even if all these materials were in agreement — and, as we have seen, they are not — this court alone would still have the sole authority and duty of performing the judicial function involved in the interpretation and application of a state statute. However, although the views of expert laymen 'cannot possibly impeach the legal validity of the statute, their writings do reflect responsible views in the social community which any forward-looking court ought to take into account.

The broader the prohibitions we read into our statute, the more unlikely it is that these prohibitions are reasonably related to the legitimate ends which the legislation seeks to serve. Thus, the constitutional background of the legislation, the inherent nature of the subject of regulation and the available knowledge concerning the possible effects of such legal regulation all point to and necessitate a very limited definition of the statutory prohibition of obscenity.

Turning now to the problem of definition itself, we note, to begin with, that, until very recently, the test of obscenity in this State was that laid down in Regina v. Hicklin (L. R. 3 Q. B. 360 [1868]) and stated by this court to be “ whether the tendency of the matter charged as obscenity is to deprave or corrupt those whose minds are open to such immoral influences, and who might come into contact with it ”. (People v. Muller, 96 N. Y. 408, 411, supra; see, also, People v. Doubleday & Co., 297 N. Y. 687, affd. 335 U. S. 848.) This test was justly criticized, however, on two different grounds — the first, that, as applied, a book might be condemned on the basis of isolated passages in it rather than because of its “dominant effect ” (United States v. One Book Entitled Ulysses, 72 F. 2d 705, 708, affg. 5 F. Supp. 182, 185) and the second, that it “ reduce[d] our treatment of sex to the standard of a child’s library (United States v. Kennerley, 209 F. 119, 121.)

Not until 1957, however, did the Supreme Court declare impermissible and unconstitutional a standard of obscenity which rested on the tendency of the objectionable material to corrupt the morals of the young or immature. (See Butler v. Michigan, 352 U. S. 380, 382-383; see, also, Brown v. Kingsley Books, 1 N Y 2d 177, 188-189, supra; Matter of Excelsior Pictures Corp. v. Regents of Univ. of State of N. Y., 3 N Y 2d 237, 241-242.) The consequence of such a standard, wrote the court in the Butler case, “is to reduce the adult population * *. * to reading only what is fit for children ” and it must fall on this account because it is “ not reasonably restricted to the evil with which it is said to deal ” (352 U. S., at p. 383). In Roth v. United States (354 U. S. 476, supra), the Supreme Court went further and repudiated both of the objectionable aspects of the Hichlin rule, declaring (p. 489): “ The Hichlin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press.”

It is apparent, however, that, although the Butler and Roth cases destroy the Hichlin rule, they do not lay down a test of obscenity binding on our interpretation of this State’s obscenity statute. (See Lockhart and McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn. L. Rev. 5, 55.) In the Butler case (352 U. S. 380, supra), the court merely condemned the statute before it without suggesting a constitutionally sanctioned alternative. In the Roth case (354 U. S. 476, supra), the court did say that “ Obscene material is material which deals with sex in a manner appealing to prurient interest ’ ’ (p. 487) and that the test was “ whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest ” (p. 489). These statements, however, can only indicate the broad boundaries of any permissible definition of obscenity under the United States Constitution; they do not pretend to, and cannot, give specific content to the meaning of “ obscene ” as it appears in o.ur statute.

As we wrote in Brown v. Kingsley Books (1 N Y 2d 177, 181-182, supra), the concept of obscenity is “imprecise”, its “‘vague subject-matter ’ being largely ‘ left to the gradual development of general notions about what is decent ’ ’ ’. Accordingly, the problem involved in laying down a standard is to find ‘ ‘ the present critical point in the compromise between candor and shame at which the community [has] arrived”. (United States v. Kennerley, 209 F. 119, 121, supra.) To be sure, there are some in the community who regard any realistic portrayal of sexuality, any form of erotic realism, as an insupportable threat to the social order. And there are others who view any intrusion of the State’s power in this area as unnecessary and improper. The “ critical point in the compromise ” lies between these extremes. ‘ ‘ All that we can say is that the line [must] be higher than the lowest level of moral principle and practice, and lower than the highest”. (Cardozo, Paradoxes of Legal Science, p. 37.)

Mindful of the constitutional necessity to open the door barring state intrusion into this area “ only the slightest crack necessary” (Roth v. United States, 354 U. S. 476, 488, supra), and desirous of erecting a standard which embodies the most universal moral sensibilities and may be applied objectively, we are of the opinion that the prohibitions of section 1141 of the Penal Law should apply only to what may properly be termed ‘ ‘ hard-core pornography ’ ’. The mere undemonstrated possibility of harm to the community from realistic accounts of normal sexuality is not of sufficient moment to warrant the exercise of the public force in their suppression. And this is true whether the narratives concerned may be said to have artistic or scientific justification or whether they lack anything of “ any possible value to society”. (Winters v. New York, 333 U. S. 507, 510, supra; see, also, Hannegan v. Esquire, Inc., 327 U. S. 146, 153, 158, supra.)

As the Supreme Court observed in the Roth case (354 U. S. 476, 487, supra), “sex and obscenity are not synonymous.” (See, also, Mounce v. United States, 355 U. S. 180, revg. 247 F. 2d 148; One, Inc., v. Olesen, 355 U. S. 371, revg. 241 F. 2d 772; Sunshine Book Co. v. Summerfield, 355 U. S. 372, revg. 249 F. 2d 114.) Under our statute, section 1141 of the Penal Law, the test of the obscene, of the pornographic, is not in the tendency or appeal of the material, but rather in its content objectively appraised. (See Lockhart and McClure, Censorship of Obscenity : The Developing Constitutional Standards, 45 Minn. L. Rev. 5, 58-68.) It focuses predominantly upon what is sexually morbid, grossly perverse and bizarre, without any artistic or scientific purpose or justification. Recognizable “ by the insult it offers, invariably, to sex, and to the human spirit ” (D. H. Lawrence, Pornography and Obscenity [1930], p. 12), it is to be differentiated from the bawdy and the ribald. Depicting dirt for dirt’s sake, the obscene is the vile, rather than the coarse, the blow to sense, not merely to sensibility. It smacks, at times, of fantasy and unreality, of sexual perversion and sickness and represents, according to one thoughtful scholar, a debauchery of the sexual faculty”. (Murray, Literature and Censorship, 14 Books on Trial 393, 394; see, also, Lockhart and McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn. L. Rev. 5, 65.)

' Applying this standard to the issue of the magazine before us, it is plain that it does not fall within the proscribed area. This is so because no one of its stories or pictures is obscene within the meaning of section 1141 of the Penal Law. If any single item, considered as a whole, were pornographic, the circumstance that it was included in a collection otherwise without taint would not save it from criminal, prosecution. The fact is, however, that, while the magazine contains many stories or pictures which are aesthetically tasteless and without any redeeming social worth, none of them is pornographic. Numerous pictures and cartoons of nude or semi-nude women and numerous descriptions and depictions of sexual arousal and satisfaction are to be found in ‘1 Q-ent ’ ’, but it contains nothing which smacks of sick and blatantly perverse sexuality. Whether or not, therefore, the defendant had previous knowledge or notice of the content of the magazine, we may not say that its sale constituted a violation of our obscenity statute.

Were we to judge the magazine before us in terms of our personal views of its social value, of its moral and aesthetic worth, we would condemn it out of hand for its vulgarity no less than for its banality. Basic principles of jurisprudence, however, command us to put to one side all personal predilections, including our distaste for commercial exploitation of sensuality. It is our conclusion that the magazine, appraised as objectively as is possible in the light of First Amendment concepts, may not be adjudged obscene without impairing the vital social interest in freedom of expression.

The order appealed from should be affirmed.

Chief Judge Desmonto (concurring).

I find in this record satisfactory proof that defendant knew the character and content of the magazine which it sold and which is alleged to be obscene. But the larger question is: was this periodical obscene in the sense that the law uses that ancient adjective, which over the centuries has had so many shades of meaning? In other words, does the magazine come within the prohibition of section 1141 of the Penal Law and, if so, is such a prohibition valid within the “obscenity” exception to the First Amendment’s” freedom of speech (Chaplinsky v. New Hampshire, 315 U. S. 568, 571, 572)?

Not only is the meaning and application of the term “ obscene” doubtful and controversial, but from the writings of the canon law specialists of old to the modern opinions of the United States Supreme Court the one point of universal agreement is that precise definition is impossible. This is one of the law questions where, as Samuel Johnson observed: “Definitions are hazardous ”, and yet a workable test is available and accepted.. The intrinsic nature, tendency and bent of the work determines whether it is to be banned or its vendor punished. An eminent moral theologian explains, quite consistently with the controlling American decisions: ‘ ‘ For a book to be prohibited it is necessary that from its whole tenor the author’s intention is evident of teaching the reader about sins of impurity and arousing him to libidinousness ” (Noldin, De Preceptis Dei et Ecclesiae, p. 658). St. John-Stevas, one of the soundest and sanest of today’s writers on the law of obscenity, says that: ‘ ‘ A pornographic book * * * is one deliberately designed to stimulate sex feelings and to act as an aphrodisiac ” (Obscenity and the Law, p. 2; cf. Roth v. United States, 354 U. S. 476, 486, 487). The identical thought is in Judge Woolsey’s famed Ulysses opinion (United States v. One Book Called Ulysses, 5 F. Supp. 182, affd. 72 F. 2d 705; 707) and in Justice Bbenxait’s famous phrase: 1‘ dominant theme of the material taken as a whole appeals to prurient interest” (Roth v. United States, supra, p. 489). The inquiry for the court, therefore, is whether the publication is so entirely obscene as to amount to ‘ ‘ hard-core pornography ” (not necessarily dealing with deviate sex relations since while there is a pornography of perversion, “ pornography ” is not limited to the depiction of unnatural acts).

And who is to decide what is the dominant theme of a particular book or picture or play? The Supreme Court has given us a sufficient answer: ‘1 the average person, applying contemporary community standards ” (Roth v. United States, 354 U. S. 476, 489, 490, supra).

Grounded in logic, good morals and precedent is that part of the rule which looks to the dominant theme” (see United States v. Limehouse, 285 U. S. 424; Kingsley Books v. Brown, 354 U. S. 436; Kingsley Pictures Corp. v. Regents, 360 U. S. 684; Matter of Excelsior Pictures Corp. v. Regents of Univ. of State of N. Y., 3 N Y 2d 237, 242). The other part of the rule, which takes into account contemporary community standards, is historically sound also. From the earliest records of our civilization we know that pornographic writings and pictures have been always in circnlation and that from the days of ancient Greece and Borne through the period of English ecclesiastical court jurisdiction and common-law times until the present there have been many rises and falls, sudden or gradual, in the levels of community acceptance of sex-concerned books, illustrations and plays. Each change has in turn affected the contemporary law as to obscenity.

Applying the two-element test leaves one at least in reasonable doubt as to whether this magazine can fairly be called pornographic ” using that term as describing the extreme form of gross and all-intentioned sexuality which American statutes and courts may constitutionally punish as criminal. This collection of sexy fiction and illustrations has little of literary merit or artistry and yet it is not in the First Amendment sense filthy or disgusting or deliberately corruptive or offensive to common decency under prevailing standards of taste. Virtuous adults will reject it (as all of us Judges would were we not restrained by the Roth-Alberts legal test). Adolescents may be hurt by it. But our prepossessions are not the law and the reactions of children are not valid tests (Roth v. United States, 354 U. S. 476, 489, 490, supra).

Law in a pluralist society does not regulate literary standards or give expression to the loftiest virtues. Civil court decisions in such cases must be prudential, must be acts of practical judgment in the social order of our time and place. ‘1 Human law cannot prohibit everything which the Natural law prohibits (St. Thomas Aquinas, 700 years ago, in Summa Theologica, I-II, q. 96, art. 2, ad. 3) but must take full measure of human nature and current traditions. We follow the best ancient and modern legal thought and obey the spirit of our national charter when we interpret strictly—that is, liberally in favor of freedom— laws which restrict the right of free speech (Canon Law, canon 19; Matter of Excelsior Pictures Corp. v. Regents of Univ. of State of N. Y., 3 N Y 2d 237, 246, supra).

The order should be affirmed.

Froessel, J. (dissenting).

For well nigh a century (L. 1868, ch. 430, Penal Code, L. 1881, ch. 676, § 317; Penal Law, § 1141), our Legislature has declared the public policy of this State with respect to the age-old problem of obscenity. The common judgment that obscenity should be restrained is also reflected in the international Agreement for the Suppression of the Circulation of Obscene Publications entered into by more than 50 countries (37 U. S. Stat. 1511; Treaties in Force [U. S. State Dept., Office of Legal Advisor, Oct. 31, 1956], p. 209); in the obscenity laws of our 48 States (1955) (Hearings before 'Subcommittee to Investigate Juvenile Delinquency of the Senate Committee on the Judiciary pursuant to Senate Bes. 62, 84th Cong., 1st Sess. [May 24,1955]); and in the score of obscenity laws enacted by Congress since 1842. (Roth v. United States, together with Alberts v. California, 354 U. S. 476, 485.)

It is our duty to enforce that public policy in the light of developing constitutional standards, rather than the views expressed in selected articles, though informing and well intentioned, which would justify or acquiesce in the alleged necessity of allowing the distribution of the kind of material complained of in this case. The principal question before us is whether “ Gent ”, the magazine in evidence, is obscene under our statute.

The Supreme Court of the United States, in Roth v. United States (354 U. S. 476, supra), crystallized the current standard or test for judging obscenity. It recognized (p. 487), as do we, that “ sex and obscenity are not synonymous ”. It held, as it had previously indicated in Chaplinsky v. New Hampshire (315 U. S. 568, 571-572), that “ obscenity is not within the area of constitutionally protected speech or press ”. “ Obscene material ”, the court said, “ is material which deals with sex in a manner appealing to prurient interest”, which is defined as “ material having a tendency to excite lustful thoughts ” (Roth v. United States, supra, 354 U. S. 476, 485, 487).

In that case, the court approved the following instruction of the Trial Judge: “ ‘ The words “ obscene, lewd and lascivious ” as used in the law, signify that form of immorality which has relation to sexual impurity and has a tendency to excite lustful thoughts.’ ” “ The test ”, Justice Brennan stated (p. 489), is “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest ’ ’, which test ‘ ‘ provides safeguards adequate to withstand the charge of constitutional infirmity ”.

In Matter of Excelsior Pictures Corp. v. Regents of Univ. of State of N. Y. (3 N Y 2d 237, 240) (then) Judge Desmond, writing for the majority, defined the term “ obscene in the sense in which the law has used that term for centuries ” as “ sexually impure or filthy ”, and noted (p. 246) that “ ‘ obscenity, real, serious, not imagined or puritanically exaggerated, is today as in all past centuries, a public evil, a public nuisance, a public pollution ’ ”. In his concurring opinion, Judge Fuld, “ in wholehearted agreement ” with this latter statement, felt that the “ evil * * * may be adequately dealt with by resort to the courts in the first instance, either by criminal prosecution (Penal Law, § 1141) or by injunctive process ” (3 N'T 2d, at p. 247). We are now called upon to deál with a criminal prosecution, not one of prior restraint.

We find nothing in the First Amendment or in the language of the Roth case (supra) which dictates the strict construction of section 1141 now proposed by Judge Fuld. By limiting the applicability of that section only to what he termed “ hard-core pornography ”, we would be adopting a far more stringent test than is required under present constitutional standards, and in effect be opening the door to obscenity so widely as to be tantamount to a repeal in large measure of section 1141. Since we may constitutionally give vitality to the legislative enactment, why is it necessary for us to strain against the definition laid down by the highest court in the land in order to permit the continued distribution of material which the average person would unhesitatingly condemn as obscene and lewd?

There is a broad area between material which all would concede is shockingly and unquestionably obscene, and matter which all would agree is clearly free of obscenity. It is.urged that the critical point in the compromise lies between these two extremes, and that, quoting Judge Cardozo (Paradoxes of Legal Science, p. 37): “ All we can say is that the line will be higher than the lowest level of moral principle and practice, and lower than the highest.” Yet the determination is promptly made that the statute should apply only to the lowest level, namely, “ hard-core ” pornography, despite Judge Cardozo’s further statement: “It [the law] will follow, or strive to follow, the principle and practice of the men and women of the community whom the social mind would rank as intelligent and virtuous ’ ’ (id., p. 37).

Courts may not abdicate their function of judging material between these two extremes by relegating it all to the area deemed free of obscenity. We do not hesitate to adjudicate similarly close and difficult situations in other branches of the law, such as, e.g., determining what is fraud, reasonable doubt, premeditation and deliberation—the latter situations often involving human life itself. Or, as Judge Cardozo put it, ‘ ‘ jurisprudence has its reasonable man, its negligent man and * * * its moral man”. We cannot supply scientific definitions or require scientific tests in matters such as these, for law itself is by no means an exact science. “ They do better things with logarithms ” (p. 1).

Applying the test laid down in Roth v. United States (supra, at p. 487), a test Judge Fudd agrees is within the constitutional 11 boundaries of any permissible definition of obscenity ’ ’, all eight Judges below have concluded that the magazine “ Gent ” is obscene under the statute, and their unanimous judgment, rendered in the exercise of their ‘ ‘ function as the spokesmen of the thought and sentiment of the community ”, should not be lightly set aside (People v. Pesky, 254 N. Y. 373, 374; People v. Osher, 285 N. Y. 793; People v. Muller, 96 N. Y. 408, 410).

The portrayal of sex in the manner presented here is ■“ without any redeeming social worth”,"is not for the purpose of promoting art, literature or science, but is nothing more than a distribution of smut — dirt for dirt’s sake — by a wholesale distributor to local stores and stands for the sole purpose of selfish commercial exploitation. Judges, who in their broad experience have necessarily had to deal with many sordid aspects of human life, are sometimes prone to forget that it is their duty to examine material of this kind through the eyes of ‘ ‘ the average person ”, whether youth or adult. It cannot be gainsaid—and we require no scientific tests to establish it—that the overwhelming mass of people in our State, by and for whom our public policy is made, are opposed to obscenity as finally defined by the Supreme Court in the Roth case (supra).

We are not privileged to rule, as a matter of law, in applying the contemporary community standards test, that the courts below were wrong in determining in effect that ‘ ‘ the average person ” would conclude that the dominant theme of Gent ” taken as a whole appeals to prurient interest. If only ‘ ‘ hardcore ” pornography may be proscribed, purveyors of magazines and periodicals — on a large scale and with almost free rein — will be at liberty to flood the newsstands and candy stores in every local community in the State with material ‘ ‘ the average person ” would condemn as obscene and lewd. "

In support of the foregoing views, we now turn to the contents of the magazine itself which, we are asked to rule, as a matter of law, are not obscene. In so doing, we feel constrained to deal with it, not in the abstract as in a vacuum—lest our opinions be deemed mere logomachy—but as it was printed and portrayed for the public at large, and let it speak for itself.

Among the numerous pictures in £ ‘ Gent ’ ’ of nude or partially nude women, many of which are clearly sexually suggestive, is one found on page 11. It is a picture of a totally nude woman, just starting to slip on an undergarment, and saying to another nude woman, whose nakedness is reflected in a mirror on the wall,11 I’d better leave now—before yonr husband comes home.’ This picture clearly and openly imports lesbianism—“ a debauchery of the sexual faculty ”.

An article on page 7 describes an experience between a married man and a young woman. It tells how, while walking to her apartment, he “ absorbed the view of her breasts standing out in bold relief. In his haziness, he pictured her naked from her fleshy shoulders to her liquid underbelly ” (p. 9, col. 1). Then, later, she “ expertly worked [her hand] down his body. Her palm pushed in his belly slightly * * *. Her breathing was louder now, and she wriggled to get into a more erotic position ” (p. 9, col. 2). On page 10: he ‘ * let his finger toy with her nipples until they stood up like pencil erasers. He grabbed her, and drove his tongue to the roof of her mouth. She did it back, and soon they were rubbing and kissing and feeling, and undressing each other. They thrashed on the bed until their rhythmic animal convulsions propelled them to the floor ”.

In another article, entitled “ Outline for an Anthropological Disquisition ” (atp. 53), the author describes a somewhat similar experience, and apologizes for his brutality but is invited by the woman to be more brutal next time.

These are but illustrative of the general content of the magazine, although there is some mild attempt at face saving by the inclusion of some material that is free from smut. In our opinion, the magazine, when read as a whole together with its photographs and illustrations, clearly comes within the test of obscenity, as outlined in the Roth case (supra), and even with the very narrow standards the majority would set. We do not think that, because cases of this kind present problems, courts should make it easy for themselves by holding that only the most depraved situations come within the purview of our statute, as in Brown v. Kingsley Books (1 N Y 2d 177, affd. 354 U. S. 436).

Nor do we have any doubt upon this record of the presence of scienter. Defendant is not a mere retailer, newsstand or candy store owner, but is a wholesaler and distributor engaged solely in this business and with many years of experience. Its general manager Grunin was the only officer active in its management, and he has been engaged in this business for about 40 years. Defendant had the sole and exclusive right to distribute Gent ” for the entire County of Richmond, and the magazine was distributed to approximately 102 local dealers within a period of two days.

The most cursory inspection of the magazine would have put defendant on notice as to its contents, and, even if it did not know, it may not avoid its responsibility by closing its eyes to what should have been apparent, or by deliberately avoiding ascertaining its contents. In response to questioning, the witness Grunin testified that if one of the magazines he handled contained “ concededly the most obscene and pornographic pictures that anyone could imagine ”, he would not know about it. Indeed, he conceded that no one in the corporation was even authorized to examine the magazines distributed, even those which the corporation classified as “Men’s Candids ”, and, if one did so, he would be discharged. Clearly, in the commercial exploitation of these magazines, defendant gave the definite impression of deliberately avoiding the acquisition of knowledge as to the nature of the products it was selling and distributing.

The order appealed from should be reversed, and the judgment of conviction and sentence imposed thereunder by the Court of Special Sessions reinstated.

Judge Van Vookhis concurs with Judge Ftjld; Chief Judge Desmond concurs in a separate opinion in which Judge Dye concurs; Judge Froessel dissents in an opinion in which Judges Burke and Foster concur.

Order affirmed.

      . See Alpert, Judicial Censorship of Obscene Literature, 52 Harv. L. Rev. 40; Blanshard, The Right to Read (1955), pp. 138-167; Ernst and Seagle, To the Pure (1928), ch. XIII; Larrabee, The Cultural Context of Sex Censorship, 20 Law and Contemporary Problems 672, 676-681; Weeks, This Trade of Writing (1935), pp. 126-147; Cairns, Freedom of Expression in Literature, 200 The Annals 76, 76-84; Mencken, Prejudices, Fifth Series (1926), pp. 15-21.

      . See, e.g., Bell, Youth Tell Their Story (1938), pp. 40-42; Ernst and Seagle, To the Pure (1928), eh. XII; Gellhorn, Individual Freedom and Governmental Restraints (1956), pp. 60-67; Jahoda and Staff of Research Center for Human Relations, New York University (1954), The Impact of Literature: A Psychological Discussion of Some Assumptions in the Censorship Debate; Mead, Sex and Censorship in Contemporary Society, New World Writing, Third Mentor Selection (1953) ; Scott, Into Whose Hands (1945), D. 20; Wertham, Seduction of the Innocent (1963); Hearings Before the Select Committee on Current Pornographic Materials of the House, 82d Cong., 2d Sess. (1958); Hearings Before the Subcommittee to Investigate Juvenile Delinquency of the Senate Committee on the Judiciary, Sen. Res. 62, 84th Cong., 1st Sess. (1965) ; Report of the New York State Joint Legislative Committee to Study the Publication of Comics, N. Y. Legis. Doe., 1954, No. 37.


source: Caselaw Access Project

author: Froessel, J.

license: Public Domain

text:
    Corhill Corporation, Appellant, v. S. D. Plants, Inc., Respondent.
    Argued April 27, 1963;
    decided May 26, 1961.

      Simon H. Rifkind and Peter M. Fishbein for appellant.
    I. A motion for judgment dismissing the complaint under rule 107 of the Rules of Civil Practice will not be granted unless it “ conclusively appears ” from the pleadings and affidavits that the claims have been released so that there is no triable issue of fact. (Cordes v. California Ins. Co., 6 A D 2d 985; Zimmer v. Whiting-Buick, 274 App. Div. 967; Fredburn Constr. Corp. v. City of New York, 280 N. Y. 402; Erbe v. Lincoln Rochester Trust Co., 2 A D 2d 247, 3 N Y 2d 842; Herzog v. Brown, 217 App. Div. 402, 243 N. Y. 599.) II. There is a factual issue whether the release of liens was intended to release Corhill’s claims against Plants. (Whittemore v. Judd Linseed & Sperm Oil Co., 124 N. Y. 565; Buffalo Elec. Co. v. State of New York, 9 A D 2d 372; Mokar Props. Corp. v. Hall, 6 A D 2d 536; Amusement Securities Corp. v. Academy Pictures Distrs. Corp., 162 Misc. 608, 250 App. Div. 710, 277 N. Y. 557.) III. The motion to dismiss is not supported by general condition No. 25. There is a factual issue whether, at the time of the making and acceptance of the final payment, Corhill’s claims against Plants alleged in the amended complaint were “ previously made ” and “ still unsettled ” and, hence, whether they were waived under general condition No. 25 of the subcontract. (Mokar Props. Corp. v. Hall, 6 A D 2d 536.) IV. The claims alleged in the amended complaint are not within the scope of general conditions Nos. 16 and 17 of the subcontract between Corhill and Plants. (Clark Plastering Co. v. Seaboard Sur. Co., 259 N. Y. 424; Vitarelli v. Bruson Constr. Corp., 235 App. Div. 804; Gearty v. Mayor of City of N. Y., 171 N. Y. 61; Ryder Bldg. Co. v. City of Albany, 187 App. Div. 868; Faber v. City of New York, 222 N. Y. 255; Rusciano & Son Corp. v. State of New York, 201 Misc. 690; Shore Bridge Corp. v. State of New York, 186 Misc. 1005; Pitt Constr. Co. v. City of Dayton, 237 F. 305.)

      Lyon Boston, Karl T. Frederick and Carl G. Manderen for -respondent.
    I. The amended complaint was properly dismissed pursuant to rule 107 of the Rules of Civil Practice by reason of the release of the claims asserted therein by acceptance of final payment. (La Rose v. Backer 11 A D 2d 314; Foster v. White & Sons, 244 App. Div. 368, 270 N. Y. 572; General Valuations Co. v. City of Niagara Falls, 253 App. Div. 156; Northern Pacific Ry. Co. v. Goss, 203 F. 904; Cauldwell-Wingate Co. v. City of New York, 269 N. Y. 539; Snare & Triest Co. v. City of New York, 191 App. Div. 184, 233 N. Y. 528; MacArthur Bros. Co. v. City of New York, 177 App. Div. 725, 224 N. Y. 629; Borough Constr. Co. v. City of New York, 200 N. Y. 149; Gearty v. Mayor of City of N. Y., 171 N. Y. 61; Ryder Bldg. Co. v. City of Albany, 187 App. Div. 868; Faber v. City of New York, 222 N. Y. 255; Rusciano & Son Corp. v. State of New York, 201 Misc. 690; Shore Bridge Corp. v. State of New York, 186 Misc. 1005; Pitt Constr. Co. v. City of Dayton, 237 F. 305; Oakhill Contr. Co. v. City of New York, 262 App. Div. 530.) II. Every issue presented is determinable, as a matter of law, so that no trial of issues of fact is required. (Single v. Whitmore, 307 N. Y. 575; Gans v. Aetna Life Ins. Co., 214 N. Y. 326; Murphy v. Bissell, 254 App. Div. 891.)
   Froessel, J.

In this action by plaintiff for breaches of warranty and of a subcontract, defendant contractor moved to dismiss plaintiff’s amended complaint on the ground of release (Rules Civ. Prac., rule 107). The Appellate Division reversed Special Term’s denial of the motion. The question presented on this appeal is whether on the record before us 11 facts tending to obviate ” the “ objection ” have been shown (id., rule 108) (Town of North Hempstead v. Harper, 235 App. Div. 708, affd. 259 N. Y. 633; Erbe v. Lincoln Rochester Trust Co., 2 A D 2d 247, 249, affd. 3 N Y 2d 842; Zimmer v. Whiting-Buick, 274 App. Div. 967).

Defendant’s claim of release is predicated in part upon a document captioned Release of Liens ” executed by plaintiff, but more particularly upon general condition No. 25 of the subcontract providing in relevant part that the ‘ ‘ making and acceptance of the final payment shall constitute a waiver * * * of all claims by the Subcontractor, except those previously made and still unsettled ’ ’.

In our opinion, the “ Release of Liens ” document served to release liens and claims of liens of plaintiff subcontractor and nothing more. The reference elsewhere in the document to claims ”, upon which defendant relies, means claims by laborers, contractors and materialmen of plaintiff subcontractor with which it is chargeable, and not the claims of plaintiff subcontractor itself against defendant contractor. The document read as a whole and construed in the light of general condition No. 30 of the subcontract, pursuant to which it was drawn, tendered and executed, clearly compels this conclusion (see Rentways, Inc., v. O’Neill Milk & Cream Co., 308 N. Y. 342, 347; Empire Props. Corp. v. Manufacturers Trust Co., 288 N. Y. 242, 248; Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N. Y. 284, 299; Matter of Delaware County Elec. Co-op. v. City of New Fork, 304 N. Y. 196, 201).

We note, moreover, that were we to sustain defendant’s interpretation of this document the express provision in condition No. 25 preserving “ previously made ” and “ unsettled ” claims would be rendered entirely meaningless, and this we may not do. It is a cardinal rule of construction that a court should not “adopt an interpretation” which will operate to leave a “ provision of a contract * * * without force and effect ” (Muzak Corp. v. Hotel Taft Corp., 1 N Y 2d 42, 46; Fleischman v. Furgueson, 223 N. Y. 235, 239).

Turning then to condition No. 25, we think a question of fact is presented as to whether the claims at bar were “ previously made” and “unsettled” at the time of final payment. The relevant portion of plaintiff’s affidavit (by its president, Powers) in opposition to the motion avers in substance that, while the work under the subcontract was being performed—prior, of course, to final payment—and the claims which are the subject of this action arose, such as delay by defendant, for example, “ conferences were immediately had with the defendant’s officers ” and plaintiff’s “ claims ” were made known (emphasis supplied). Specific reference to conferences in September and October of 1957 and the specific complaints respecting said claims made on those occasions are given in the affidavit as examples. Plaintiff maintained in the affidavit that it was advised at those times by defendant to continue with the work and that adjustments would be made upon completion of the contract, but they never were. Final payment was made on January 28, 1958.

Defendant’s vice-president, in his reply affidavit below, after noting plaintiff’s claims as just outlined, averred: “ There were no unsettled contractual claims made by plaintiff at the time of final payment under said subcontract” (emphasis supplied); he had previously made the same assertion in his moving affidavit. Notwithstanding the foregoing, defendant now urges the absence of a factual dispute.

In this connection great stress is placed upon a letter written by plaintiff’s then vice-president, one Stille (now deceased), to defendant, dated December 13,1957. It marked the initiation of a series of correspondence culminating in a letter by defendant dated November 3, 1958 to the owner, General Aniline and Film Corp., asking it to make good plaintiff’s loss for reasons of equity and fairness, which the owner eventually refused to do. Admittedly, the 1957 letter on its face is solicitous and more indicative of “ a plea for relief from the contract ” than an assertion of claims under the contract ’ ’, as the Appellate Division put it. However, plaintiff maintained in its affidavit below that the tone and contents of the letter were suggested by defendant, and that plaintiff complied with defendant’s request in that regard in order to help it in its efforts to have plaintiff’s claims against it paid by the owner. A separate factual dispute is thus presented, in our opinion, as to the import of the letter itself as well as the subsequent correspondence. It is not resolved by the affidavits so as to justify summary relief.

Accordingly, the judgment appealed from should be reversed; the motion under subdivision 6 of rule 107 denied, and defendant permitted to plead its defense in its answer; said answer to be served within 10 days after service of a copy of the order to be entered hereon, with costs.

Chief Judge Desmond and Judges Van Vooehis, Btjbice and Fosteb concur with Judge Fboessel ; Judges Dye and Fuld dissent and vote to affirm.

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

      . It provides, insofar as pertinent: “ That the [plaintiff] * * *, having discharged its obligations under Subcontract * * * states that all claims of labor, contractors, materials, construction tools and equipment furnished directly or indirectly in the connection with the performance of said subcontract have been fully paid and discharged, and there are no claims, liens, privileges or encumbrances in connection with said contract, and that subcontractor does hereby waive, release, relinquish and discharge any and all liens and claims of liens which subcontractor might or could have * * * in connection with said subcontract. This release of liens covers all extra work orders issued in relation to this Contract.” (Emphasis supplied.)

      . It provides: “Liens: Neither the final payment nor any part of the retained percentage shall become due until the Subcontractor, if required, shall deliver to the Contractor a complete release of all liens arising out of this Subcontract, or written receipts in full in lieu thereof and, if required in either case, an affidavit that so far as he has knowledge or information the releases and receipts include all the labor and material for which a lien could be filed.” (Emphasis supplied.)


author: Burke, J.

text:
    The People of the State of New York, Respondent, v. James Freeman, Appellant.
    Argued April 18, 1961;
    decided May 25, 1961.

      Janies T. Boorsch and Anthony F. Marra for appellant.
    I. The trial court erred in permitting improper impeachment by the People of their own witness and in refusing to give proper limiting instructions to the jury on the role of such testimony. (People v. McCormick, 278 App. Div. 410, 303 N. Y. 403; People v. Ferraro, 293 N. Y. 51; People v. Shingles, 281 App. Div. 647; People v. Cannizzaro, 1 N Y 2d 167; People v. Peetz, 7 N Y 2d 147; People v. Kenda, 3 A D 2d 80; People v. Bishop, 270 App. Div. 133.) II. The summation of the District Attorney was highly inflammatory and prejudicial and was improper conduct which denied defendant a fair trial. (People v. Migliori, 273 App. Div. 915; People v. Alvarez, 4 A D 2d 45; People v.
      Bretagna, 298 N. Y. 323; People v. Harris, 306 N. Y. 345; People v. Tunstall, 5 A D 2d 338; People v. Tassiello, 300 N. Y. 425; People v. Fielding, 158 N. Y. 542; People v. Swanson, 278 App. Div. 846; People v. Dillon, 197 N. Y. 254; Coffin v. United States, 156 U. S. 432; People v. Nicoll, 3 A D 2d 64.)

      Edward S. Silver, District Attorney (Frank Di Lalla of counsel), for respondent.
    I. The trial court’s rulings with respect to the impeachment of the witness Boss were not erroneous and were not prejudicial. (People v. McCormick, 278 App. Div. 410, 303 N. Y. 403; Matter of Roge v. Valentine, 280 N. Y. 268; People v. Marino, 288 N. Y. 411; People v. Ferraro, 293 N. Y. 51; People v. Spinello, 303 N. Y. 193; People v. Cannizzaro, 1 N Y 2d 167; People v. Shingles, 281 App. Div. 647; People v. Guardino, 286 N. Y. 132; People v. Conrow, 200 N. Y. 356; People v. Wilson, 141 N. Y. 185; Greenfield v. People, 85 N. Y. 75; People v. Warder, 231 App. Div. 215; Throckmorton v. Holt, 180 U. S. 552; People v. Sprague, 217 N. Y. 373; People v. Sarzano, 212 N. Y. 231; People v. Ferola, 215 N. Y. 285; People v. Sherman, 133 N. Y. 349.) II. The prosecutor’s summation was neither inflammatory nor inaccurate. (People v. Conklin, 175 N. Y. 333; People v. Doody, 172 N. Y. 165; People v. Watson, 216 N. Y. 565; People v. Pallister, 138 N. Y. 601.)
   Burke, J.

A reversal of appellant’s conviction of manslaughter in the first degree and a new trial are required because of improper examination by the People of their own witness, and the trial court’s failure to give proper limiting instructions in regard thereto.

During the course of the trial the prosecutor produced a witness who was to corroborate the details of appellant’s participation in the assault upon deceased as described by other witnesses. "When the witness denied observation of the crime, the prosecutor was permitted, over objection, to read the text of the questions and answers upon the examination of the witness before the Grand Jury. Each question and answer was read, and the witness was asked whether he had made such an answer to the question. Although admitting to the replies which implicated the appellant as a participant in the crime, he explained that the answers were coerced under threat of arrest, and that they were false. This same procedure was followed in connection with an unsigned and unsworn statement given to an Assistant District Attorney and an oral statement given to the Trial Assistant. The reading and examination upon these statements and testimony cover 25 pages of the record.

In answer to a request to instruct the jury that this colloquy was not evidence, the court explained to the jury that: “ What he is reading is not evidence in the case, but the questions and answers are. Not what he is reading, but the questions asked here, taken down stenographically, they are evidence in the case ”. Upon further objection, the trial court declared in attempted clarification that: ‘ ‘ The District Attorney is within his right in asking these questions. However, the questions that are there in that paper are not evidence in this case, but the questions asked of this witness here and the answers given here; those are the questions upon which the jury will determine the issue here.”

Again, at the conclusion of the court’s charge at the end of the entire case, counsel requested that the court charge that the statements were not to be considered as evidence in the case. The Trial Judge merely told the jury that: “ You are to consider only such evidence as the Court permitted, to get into the record” (emphasis added).

At common law, impeachment of a party’s own witness whether by inconsistent statements or by an attack on character was forbidden. (McCormick, Evidence, ch. 5, § 38, p. 70.) However, in order to “ correct the inequities occasioned by the fact that in many cases both sides were unfairly hampered by their inability to impeach unreliable witnesses upon whom they were compelled to rely ’ ’, a limited statutory exception was adopted (People v. McCormick, 278 App. Div. 410, 413, affd. 303 N. Y. 403; see Second, Third and Fourth Annual Reports of New York Judicial Council at pp. 175, 18 and 21 respectively). Section 8-a of the Code of Criminal Procedure (also Civ. Prac. Act, § 343-a) provides that “ any party may introduce proof that a witness has made a prior statement inconsistent with his testimony, irrespective of the fact that the party has called the witness or made the witness his own, provided that such prior inconsistent statement was made in any writing by him subscribed or was made under oath ” (emphasis mine).

In addition, counsel has heen permitted, since a time prior to the enactment of that section, to introduce this evidence under the accepted guise of refreshing the witness’ recollection. (See McCormick, Evidence, ch. 5, § 38, p. 76; 3 Wigmore, Evidence [3d ed.], § 904, subd. [5], p. 398.) In Bullard v. Pearsall (53 N. Y. 230, 231-232) we said, therefore, that “ such questions may be asked of the witness for the purpose of probing Ms recollection, recalling to Ms mind the statements he had previously made, and drawing out an explanation of his apparent inconsistency. This course of examination may result in satisfying the witness that he has fallen into error and that his original statements were correct, and it is calculated to elicit the truth. It is also proper for the purpose of showing the circumstances which induced the party to call him. Though the answers of the witness may involve him in contradictions calculated to impair his credibility, that is not a sufficient reason for excluding the inquiry. * * * It is only evidence offered for the mere purpose of impeaching the credibility of the witness, which is inadmissible when offered by the party calling him. Inquiries calculated to elicit the facts, or to show to the witness that he is mistaken and to induce him to correct his evidence, should not be excluded simply because they may result unfavorably to his credibility. * * * As a matter of course, such previous unsworn statements are not evidence, and when the trial is before a jury that instruction should be given.” (Emphasis added; see, also, People v. Purtell, 243 N. Y. 273.)

The District Attorney, of course, realizing that the impeachment by means of the two statements given to the Assistant District Attorneys cannot be justified under section 8-a of the Code of Criminal Procedure, since they were neither made under oath nor subscribed, argues here that the repetition of the questions and answers of the prior statements and testimony was for the purpose of refreshing the recollection of the witness.

In spite of our approval of such an inquiry for this purpose, we believe that the prosecutor here went far beyond merely ‘1 refreshing the recollection ’ ’ of the witness. Although we are often reluctant to interfere with the trial court’s control of the scope of such probes, it is our opinion that the emphasis and time consumed on this critical testimony exceeded the limits of the permissible purpose.

We are convinced that this abuse of the privilege, together with the confusing instructions given to the jury on the testimonial value of such prior statements, constituted prejudicial errors. It has been said that “ The right of a cross-examiner to use a witness ’ own prior statement in which he has given a contrary version of the purpose of testimonial impeachment and the corollary rule that such prior statements have no substantial or independent testimonial value are so firmly imbedded in our law of evidence that the citation of authority is scarcely required. (3 Wigmore on Evidence [3d ed.], § 1018; Matter of Roge v. Valentine, 280 N. Y. 268, 277; People v. Ferraro, 293 N. Y. 51, 56; 30 Corn. L. Q., 511.) ” (People v. Kenda, 3 A D 2d 80, 85; emphasis added.)

It is abundantly clear, therefore, that it may not be introduced as affirmative evidence of guilt or the facts stated. (People v. Ferraro, 293 N. Y. 51; Richardson, Evidence [8th ed.], § 522; see, also, People v. Shingles, 281 App. Div. 647; People v. Cannizzaro, 1 N Y 2d 167; People v. Peetz, 7 N Y 2d 147.)

Therefore, even assuming that the introduction of the prior inconsistent statements was initially proper, the trial court has erred in failing, upon request, to clearly instruct the jury of the nature and purpose of the District Attorney’s inquiry.

Apart from the fact that it is at best difficult for a jury, even when properly instructed, to disregard the facts of such statements when evaluating the evidence, the monition of the trial court in this instance only added to the confusion. The jury might very well have concluded that, although the physical material from which the prosecutor was reading was not in evidence, the questions and answers when orally expressed were evidence. Moreover, they might have assumed that the witness’ acknowledgment of having made the prior statements would make them worthy evidence, regardless of the fact that he swore they were made under duress and that they were not true.

The jury’s probable misunderstanding is manifest in its later request after some hours of deliberation for a reading of the “ Testimony given by Ross in this court as to what he saw outside around the deceased”. Approximately one hour after this reading, a verdict of guilty was entered. In this light we cannot deny that a substantial right may have been affected. (People v. Ferraro, 293 N. Y. 51, supra.)

In view of the serious errors first discussed and the necessity, therefore, for a new trial, we find it unnecessary to consider other alleged improprieties.

Accordingly, the judgment should be reversed and a new trial ordered.

Chief Judge Desmond and Judges Dye, Ftjld, Froessel, Van Voorhis and Foster concur.

Judgment reversed, etc.


author: Burke, J. (dissenting).

text:
    John M. Andrews et al., Respondents, v. State of New York et al., Appellants.
    (Claim No. 34211.)
    Argued April 17, 1961;
    decided May 25, 1961.

      Thomas F. Moore, Jr., for Power Authority of the State of New York, appellant.
    I. The award was erroneous because it included as an element of damage the peculiar value of the property to the Power Authority for power purposes and its peculiar value to the Seaway Development Corporation for seaway purposes. (United States v. Twin City Power Co., 350 U. S. 222; United States v. Chandler-Dunbar Co., 229 U. S. 53; United States v. Cors, 337 U. S. 325.) II. The award was erroneous because it included an element of damage based on uses made possible only by the existence of the project and thus representing an enhancement in the value of the property occurring after and as a result of the public determination to build the project. (United States v. Miller, 317 U. S. 369; Shoemaker v. United States, 147 U. S. 282.) III. The rules of damages enunciated by the United States Supreme Court, which the Court of Claims refused to follow, express the law of New York but, in any event, they apply in this case where property was taken for a federally authorized power project and a federally constructed navigation project. (Cooper v. Aaron, 358 U. S. 566; United States v. 93.970 Acres, 360 U. S. 328; Federal Power Comm. v. Tuscarora Indian Nation, 362 U. S. 99.) IV. The Appellate Division erred in ignoring errors of law and holding that the trial court could properly find the property to be useful for industrial and commercial purposes and could properly arrive at the determination as to value which it made. (Fitzgerald v. State of New York, 10 Misc 2d 1046, 9 A D 2d 486; Sparkill Realty Corp. v. State of New York, 268 N. Y. 192.) V. The award was far in excess of the property’s value on any theory of damages. (Galloway v. United States, 319 U. S. 372; State of Washington v. United States, 214 F. 2d 33; Village of Lawrence v. Greenwood, 300 N. Y. 231.)

      Louis J. Lefkowitz, Attorney-General (Julius L. Sackman and Paxton Blair of counsel), for the State of New York, appellant.

      George J. Skivington for respondents.
    I. The trial court correctly refused to treat this land as having only abandoned farm land value. (United States v. Miller, 317 U. S. 369; United States v. Cors, 337 U. S. 325.) II. The only correct evidence as to valuation in this record was given by the claimants’ expert and the testimony of the State experts could not be -accepted or used. III. There is not a scintilla of proof in this record that these respondents knew anything about the coming of this public improvement until it actually came.
   Memorandum : The trial court has found as a fact and the Appellate Division affirmed that the appropriation of the subject property for the construction of a power line was not contemplated by the original project, which was enlarged to include that purpose only after the project was well under way. The valuation of the property for that purpose included an element of value enhanced by the existence of the original project, but under the ruling in United States v. Miller (317 U. S. 369) this is to be compensated where, as here, the project is subsequently enlarged by the construction of transmission lines, in which event the Miller case requires payment of the market price as enhanced by the factor of proximity to the public improvement. For this and other reasons stated in the opinions below, the judgment appealed from should be affirmed, with costs.

Burke, J. (dissenting).

I dissent and vote to reverse and order a new trial on the ground that the award for the property which had been held for 50 years admittedly as a potential site for power transmission in connection with the development of a St. Lawrence River power project is erroneous. The award improperly included an element of damage based on the uses made possible only by the existence of the seaway and power projects, and thus this element of damage represented an enhancement in the value of the property occurring after, and the result of, the public determination to build the seaway and power project. (Cf. United States v. Miller, 317 U. S. 369; United States v. Chandler-Dunbar Co., 229 U. S. 53; United States v. Twin City Power Co., 350 U. S. 222; United States v. Grand Riv. Dam Auth., 363 U. S. 229; United States v. Virginia Elec. Co., 365 U. S. 624 [decided April 3, 1961].)

Chief Judge Desmond and Judges Dye, Fuld, Van Voobhis and Fosteb concur; Judge Bubke dissents in a separate memorandum in which Judge Fboessel concurs.

Judgment affirmed.


text:
    The People of the State of New York, Respondent, v. Alfred Else, Appellant.
    Argued November 29, 1960;
    decided January 5, 1961.

      Thomas P. English, Jr., for appellant.

      Robert J. Trainor, District Attorney (James J. Duggan of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Feoessel, Van Voorhis, Burke and Foster.


text:
    Milton Brause et al., Appellants, v. Marshall Goldman et al., Respondents.
    Argued November 15, 1960;
    decided January 5, 1961.

      Clarence 8. Barasch for appellants.

      Daniel 8. Berman and Hugo Rothschild for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    David L. Shindler, Respondent, v. Edmund F. Lamb et al., Appellants, et al., Defendants.
    Argued November 16, 1960;
    decided January 5, 1961.

      Mark F. Hughes and Vincent R. FitsPatrick for appellants.

      Lester Samuels, Milton C. Weisman and Morris Gutt for respondent.
   Order affirmed, with costs. Questions certified answered in the negative. No opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Feoessel, Van Vooehis, Burke and Foster.


text:
    Yolanda Duque de Estrada Gonzalez, Respondent, v. Industrial Bank (of Cuba), Appellant.
    Argued November 17, 1960;
    decided January 5, 1961.

      JDinsmore Adams and Robert L. Higgins for appellant.

      Mark F. Hughes and Kenneth J. Bialkin for respondent.
   Order affirmed, with costs. Question certified answered in the negative. No opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Fboessel, Van Voobhis, Bubke and Fosteb.


text:
    Cleophas Thomas, Appellant, v. New York City Housing Authority, Respondent.
    Argued November 14, 1960;
    decided January 5, 1961.

      Benjamin Adler, Gustave G. Rosenberg and Lawrence M. Rosenberg for appellant.

      Lillian E. Cuff, William E. Kenney' and Hobart R. Marvin for respondent. ...
   Judgment affirmed, without costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    Taube Berman, Appellant, v. Grand Union Company, Respondent.
    Submitted November 18, 1960;
    decided January 5, 1961.

      Kaiser id Holsmcm for appellant.

      Herbert Edelherts and Bernard R. Lauren for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    Irene C. Connelly et al., Appellants, v. Regent Plumbers Supply Co., Inc., Respondent.
    Argued December 1, 1960;
    decided January 5, 1961.

      Francis J. Mangravite for appellants.

      Seymour J. Wilner for respondent.
   Order affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Ftjld, Froessel, Van Voorhis, Burke and Foster.


text:
    The People of the State of New York, Respondent, v. Joseph Bollettieri, Appellant.
    Argued November 17, 1960;
    decided January 5, 1961.

      Paul H. Shanahan and Stephen Pawlinga for appellant.

      Louis J. Lefkowits, Attorney-General (Robert E. Fischer and Maxwell JB. Spoont of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Field, Froessel, Van Voorhis, Burke and Foster.


text:
    Kathleen Gambeski, Individually and as Executrix of Louis V. Gambeski, Deceased, Appellant, v. Hugo E. Gauthier, Respondent.
    Argued November 15, 1960;
    decided January 5, 1961.

      Leonard O. Seifert, Joseph Tanenbaum and Robert M. Delson for appellant,

      Frederick W. Ritter for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Ftjld, Froessel, Van Voorhis, Burke and Foster.


text:
    In the Matter of John W. Soergel et al., as Taxpayers of Union Free School District No. 6, Town of DeWitt, Appellants, and Jack Macken et al., as Taxpayers and Members of the Board of Trustees of Union Free School District No. 6, Town of DeWitt, et al., Intervening Petitioners-Appellants, against James E. Allen, as Commissioner of Education of the State of New York, Respondent.
    Argued November 17, 1960;
    decided January 5, 1961.

      Stewart F. Hancock, Jr., Benjamin E. Shove and Stewart F. Hancock for appellants.

      Charles A. Brind, John P. Jehu, Elizabeth M. Eastman and George B. Farrington for respondent.
   Order affirmed, without costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    In the Matter of the Construction of the Will of Dominick A. Bracalello, Deceased. County Trust Company, as Coexecutor of Dominick A. Bracalello, Deceased, et al., Respondents. Ann Briante et al., Appellants.
    Argued January 3, 1961;
    decided January 5, 1961.
    Reported below, 11 A D 2d 804.
   Motion for reargument of motion for leave to appeal to the Court of Appeals granted and order of the Court of Appeals dated November 30, 1960 vacated. [See 8 N Y 2d 1136.]


text:
    In the Matter of John Camuglia, Appellant, v. Thomas F. Rohan et al., Constituting the New York State Liquor Authority, Respondents.
    Submitted November 28, 1960;
    argued January 3, 1961;
    decided January 5, 1961.
    Reported below, 11 A D 2d 718.

      J ohn J. Hyland and Hyman Amsel for motion.

      Jack Goodman and Michael Nardone opposed.
   Motion denied. Case set down for argument during the week of January 16,1961.


text:
    Philomena Abarno, Respondent, v. Pasquale Abarno, Appellant.
    Argued November 14, 1960;
    decided January 12, 1961.

      Misell Wilson, Jr., for appellant.

      C. Robert Cerchiara and Manlio 8. Severino for respondent.
   Judgment reversed, without costs, and matter remitted to Special Term to find the facts which it is deems essential to its decision as required by section 440 of the Civil Practice Act (Mason v. Lory Dress Co., 277 App. Div. 660). No opinion.

Concur: Chief Judge Desmond and Judges Field, Froessel, Van Voorhis, Burke and Foster. Judge Dye dissents and votes to affirm.


text:
    The People of the State of New York, Respondent, v. James A. Mack, Appellant.
    Argued October 20, 1960;
    decided January 12, 1961.

      Simeon Golar for appellant.

      Frank S. Hogan, District Attorney (Arthur C. Muhlstock and Charles W. Manning of counsel), for respondent.
   Judgment reversed and complaint dismissed upon the ground that the evidence was insufficient to support the conviction. No opinion.

Concur: Judges Dye, Fuld, Froessel, Van Voorhis and Foster. Chief Judge Desmond and Judge Burke dissent and vote to affirm (People v. Harvey, 307 N. Y. 588, 590; People v. Lundstedt, 6 N Y 2d 898; People v. MacDonnell, 7 N Y 2d 806; People v. Mathews, 7 N Y 2d 1000).


text:
    The People of the State of New York, Respondent, v. Mary Munoz, Appellant.
    Argued November 16, 1960;
    decided January 12, 1961.

      Arnold E. Wattach and Max Fruchtman for appellant.

      Isidore Dollinger, District Attorney (Irving Anolih of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Judges Dye, Froessel, Van Voorhis, Burke and Foster. Chief Judge Desmond and Judge Fuld dissent and vote to reverse and to order a new trial upon the ground that the case did not justify the submission to the jury of the charge of manslaughter, second degree, for the reasons given by the dissenting Justices of the Appellate Division.


text:
    The People of the State of New York, Respondent, v. William Davidson, Appellant.
    Argued November 28, 1960;
    decided January 12, 1961.

      Jacques M. Schiffer for appellant.

      Edward S. Silver, District Attorney (William I. Siegel of counsel), for respondent.
   Order affirmed. After a hearing in a proceeding in the nature of coram nobis in the Kings County Court, defendant’s application to vacate a conviction for the crime of assault in the first degree (affd. 297 N. Y. 894), upon the ground the Trial Judge was biased, was denied. The Appellate Division unanimously affirmed and stated in a memorandum decision: “In our opinion, the finding against appellant’s claim of bias is amply supported by the minutes of the hearing.” This court agrees. No opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    The People of the State of New York ex rel. William Davidson, Appellant, v. Robert E. Murphy, as Warden of Auburn Prison, Respondent.
    Argued October 10, 1960;
    decided January 12, 1961.

      Jacques M. Schiffer for appellant.

      Louis J. Lefkowits, Attorney-General (Winifred G. Stanley and Paxton Blair of counsel), for respondent.
   Order affirmed for the reasons stated in the memorandum decision of the Appellate Division (see People v. Davidson, 9 N Y 2d 639, coram nobis proceeding, decided and handed down herewith, wherein this court reached the merits of relator’s contention). No opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Feoessel, Van Voobhis, Bubke and Fostee.


text:
    John Dugan et al., Doing Business as M. Dugan, Trucking, Appellants, v. International General Electric Company et al., Respondents.
    Submitted January 3, 1961;
    decided January 12, 1961.

      Sidney Hut for motion to dismiss appeal and opposed to motion to waive strict compliance with the rules requiring printing. 1

      Mollie Dugan, in person, in opposition to motion to dismiss appeal and for motion to waive strict compliance with the rules requiring printing.
   Motion granted and appeal dismissed upon the ground that the Court of Appeals lacks jurisdiction to entertain it (Civ. Prac. Act, § 589, subd. 1, par. [b]).

Motion to waive strict compliance with the rules requiring printing denied.


text:
    Elizabeth Gregory, Individually and Doing Business as Book-Mart et al., Appellants, v. Carman F. Ball, as District Attorney of Erie County, et al., Respondents.
    Submitted January 3, 1961;
    decided January 12, 1961.

      Louis J. LefTcowits, Attorney-General (Ruth Kessler Toch of counsel), for motion.

      Herald P. Fahringer, Jr., opposed.
   Motion by Attorney-General granted and appeal dismissed upon the ground that there are questions involved other than the constitutional validity of a statute (N. Y. Const., art. VI, § 7, subd. [2]; Civ. Prac. Act, § 588, subd. 4).


text:
    Sidney Holzer, as Trustee in Bankruptcy of Noel Simon, Appellant, v. Noel Simon, Respondent.
    Submitted January 3, 1961;
    decided January 12, 1961.

      Samuel B. Weingrad for motion.

      Joseph D. Slim opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Morris Lorberblatt, Appellant, v. David A. Gerst et al., Respondents.
    Submitted November 14, 1960;
    decided January 12, 1961.

      Jacob L. Bothstein and Bernard Eelfenstein for motion.

      Dora Aberlin opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground there is no constitutional question directly involved.


text:
    In the Matter of Clearview Gardens First Corporation et al., Appellants, v. Max H. Foley et al., Constituting the Board of Standards and Appeals of the City of New York, et al., Respondents.
    Submitted January 3, 1961;
    decided January 12, 1961.
    Reported below, 11 A D 2d 1047.

      Samuel A. Goldberg and Simon Gallet for motion.

      Charles H. Tenney, Corporation Counsel, and Levine & Gordon opposed.
   Motion, insofar as it seeks leave to appeal from that part of the order affirming the order of the Supreme Court, Queens County, dated June 24, 1960, be and the same hereby is denied; and, insofar as it seeks leave to appeal from the order of the Supreme Court, Queens County, dated July 23, 1959, is dismissed.


text:
    In the Matter of the Accounting of Friend L. Tuttle et al., as Executors of Perry J. Fuller, Deceased. Friend L. Tuttle, Individually and as Surviving Executor of Perry J. Fuller, Deceased, et al., Appellants; John F. Moore, Jr., et al., as Executors of Anna F. Moore, Deceased, et al., Respondents.
    Submitted January 9, 1961;
    decided January 12, 1961.
    Reported below, 10 A D 2d 938.
   Motion to vacate the order of the Court of Appeals dated December 6, 1960, dismissing the appeal herein, granted upon payment of $40 costs to respondents and upon condition that the record on appeal and the brief for appellants be served and filed no later than February 1,1961.


text:
    In the Matter of Queens County Bar Association, Respondent. Milton M. Karpel, Admitted as Milton Murray Karpel, an Attorney, Appellant.
    Submitted January 3, 1961;
    decided January 12, 1961.
    Reported below, 10 A D 2d 722, 948.

      Milton M. Karpel for motions.

      Charles J. W. Meisel opposed.
   Motion to vacate order of the Court of Appeals dated June 29, 1960 granted. Appeal dismissed upon the ground no appeal lies as of right..

Motion to vacate order of Appellate Division dated May 3, 1960 dismissed for want of jurisdiction.


text:
    In the Matter of the Accounting of United States Trust Company of New York et al., as Trustees under the Will of George S. Scott, Deceased. St. Thomas Church in the City and County of New York, Appellant; Louis J. Lefkowitz, Attorney-General of the State of New York, for Ultimate Charitable Beneficiaries, et al., Respondents.
    Submitted January 3, 1961;
    decided January 12, 1961.
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by striking therefrom that portion thereof which reads “ with costs to the appellant in all courts payable out of the fund ” and. inserting in lieu thereof with costs to all parties appearing separately and filing separate briefs payable out of the fund”. [See 8 NY 2d 419.]


text:
    The People of the State of New York, Respondent, v. Ella Barber, Appellant.
    Decided January 12, 1961.
   On the court’s own motion, the time of appellant Barber is enlarged and her appeal set down for argument during the February, 1961 session of the Court of Appeals.


text:
    The People of the State of New York ex rel. Ralph Darling, Appellant, v. Walter H. Wilkins, as Warden of Attica Prison, Respondent.
    Submitted January 3, 1961;
    decided January 12, 1961.
    Rep.orted below, 12 A D 2d 729.

      Ralph Darling, in person, for motion.
    No one opposed.
   Motion dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. An application for leave must await dismissal of the appeal now pending in the Appellate Division.


text:
    The People of the State of New York ex rel. John McGuinness, Appellant, v. J. Edwin La Vallee, as Warden of Clinton Prison, Respondent.
    Submitted January 3, 1961;
    decided January 12, 1961.

      Louis J. Lefkowitz, Attorney-General (Winifred C. Stanley of counsel), for motion to dismiss appeal and opposed to motion for leave to appeal.

      John McGuinness, in person, opposed to motion to dismiss appeal and for motion for leave to appeal.
   Motion to dismiss appeal granted and appeal dismissed upon the ground that no substantial constitutional question is involved.

Motion for leave to appeal denied.


text:
    La Rue Quick et al., Appellants, v. Town of Owego, Respondent.
    Submitted January 3, 1961;
    decided January 12, 1961.
   Motion to amend remittitur granted. Beturn of remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein theye was presented and necessarily passed upon a question under the Constitution of the United States, viz.: Appellants contended that the Zoning Ordinance of the Town of Owego deprived them of property without due process of law and denied them equal protection of the laws, all in violation of the Fourteenth Amendment of the Constitution of the United States. The Court of Appeals held that there was no such deprivation or denial. [See 8 N Y 2d 1144.]


text:
    Gilbert Roller, Appellant, v. Vivian A. Frankel, Respondent, et al., Defendants.
    Submitted January 3, 1961;
    decided January 12, 1961.
    Reported below, 9 A D 2d 24.

      Thomas Grimes and James Dempsey for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, unless within 20 days appellant files a stipulation for judgment absolute.


text:
    Minnie Ulanoff, Plaintiff, v. Croyden Shirt Co., Inc., et al., Defendants. Croyden Shirt Co., Inc., Third-Party Plaintiff-Appellant, v. Samuel H. Ulanoff, Third-Party Defendant-Respondent.
    Submitted January 3, 1961;
    decided January 12, 1961.
    Reported below, 12 A D 2d 508.

      John F. Mulholland and Walter F. Doyle for motion.
    No one opposed.
   Motion denied, with $10 costs and necessary printing disbursements. (American Sur. Co. of N. Y. v. Diamond, 1 N Y 2d 594; Glens Falls Ins. Co. v. Wood, 8 N Y 2d 409.)


text:
    Dora Winokur, Respondent, v. Herman Smith et al., Appellants, et al., Defendants.
    Submitted November 28, 1960;
    decided January 12, 1961.
    Reported below, 11 A D 2d 790.

      Alfred Liébovitz for motion.

      I. Louis Winohur opposed.
   Motion dismissed without prejudice to a timely renewal thereof if and when a proper final judgment has been entered upon the order of the Appellate Division.


text:
    James Woodson, Appellant, v. New York City Housing Authority, Respondent, et al., Defendant.
    Submitted January 3, 1961;
    decided January 12, 1961.
    Reported below, 11 A D 2d 329.

      James L. B. Costello for motion.

      James David Auslander and Irving Segal opposed.
   Motion granted upon condition that appellant files a stipulation for judgment absolute within 10 days.


text:
    In the Matter of Harry T. Pitt, Appellant-Respondent, v. Town Board of the Town of Ramapo, Respondent-Appellant.
    Submitted January 11, 1961;
    decided January 19, 1961.

      Frederick E. Frey for appellant-respondent.

      David E. Moses, Town Attorney, for respondent-appellant.
   Appeals dismissed, without costs, upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. No opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    In the Matter of the Claim of Esther Leonard, as Welfare Officer, Respondent, v. Peoples Camp Corporation et al., Appellants, and Vocational Rehabilitation Fund et al., Respondents. Workmen’s Compensation Board, Respondent.
    Argued January 4, 1961;
    decided January 19, 1961.

      George J. Hayes, Charles G. Tierney and Morris N. Lissauer for appellants.

      Louis J. Lefkowits, Attorney-General (Gilbert M. Landy, Paxton Blair and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs to the Workmen’s Compensation Board; no opinion.

Concur; Chief Judge Desmond and Judges Dye, Fuld and Froessel. Judges Van Voorhis and Bxjrke dissent and vote to reverse and to dismiss the claim upon the authority of Matter of Congdon v. Klett (307 N. Y. 218). Taking no part: Judge Foster.


text:
    The People of the State of New York, Respondent, v. Roosevelt Joyner, Appellant.
    Argued January 11, 1961;
    decided January 19, 1961.

      Stephen A. Fuschino for appellant.

      Frank S. Hogan, District Attorney (Arthur O. Muhlstock and Richard Q. Denser of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    Raymond F. Teeter, Jr., Respondent, v. Allstate Insurance Company, Appellant.
    Argued January 3, 1961;
    decided January 19, 1961.

      William L. Shumate and William V. Gough for appellant.

      Leonard E. Maas for respondent.

      Lubell and Lubell for New Tork State Association of Plaintiffs’ Trial Lawyers, amicus curice.

      Alfred J. Bohlinger and Alfred Miller for National Association of Independent Insurers, amicus curice.

      James B. Donovan and Patrich J. Hughes for Association of Casualty, and Surety Companies, amicus curice.

   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    The People of the State of New York, Respondent, v. Henry Oakley, Appellant.
    Argued November 29, 1960;
    decided January 19, 1961.

      David B. Alford for appellant.

      Richard H. Farley, District Attorney, for respondent.
   Judgment reversed and a new trial ordered upon the ground that it was error as matter of law to receive defendant’s inculpatory statement, prepared, signed and sworn to before the Presiding Magistrate at a preliminary examination, before defendant was advised of his rights. We disapprove the taking of or the swearing to confessions before any judicial officer. No opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Fboessel, Van Vooehis, Bubke and Fosteb.


text:
    Anthony Soranno et al., Respondents, v. Koppers Company, Inc., Defendant-Appellant and Third-Party Plaintiff-Appellant; Sun Oil Company, Third-Party Defendant-Respondent.
    Argued January 10, 1961;
    decided January 19, 1961.

      Harold A. Meriam, Jr., for appellant.

      Robert L. Callahan for plaintiffs-respondents.

      Richard G. Hickey and John M. Foley for third-party defendant-respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuud, Froessel, Van Voorhis, Burke and Foster.


text:
    Opgal, Inc., et al., Respondents, and Press Wireless, Inc., et al., Intervening Plaintiffs-Respondents, v. John J. Burns et al., Constituting the Town Board of the Town of Oyster Bay, Appellants.
    Argued November 28, 1960;
    decided January 19, 1961.

      Elmer S. Lane, Town Attorney, for appellants.

      Robert J. Glasser and Abraham Schlissel for plaintiffs-respondents.

      Henry Root Stern, Jr., for intervening plaintiffs-respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Judges Dye, Froessel, Van Voorhis and Burke. Chief Judge Desmond and Judges Fuld and Foster dissent on the dissenting opinion in the Appellate Division.


text:
    In the Matter of Socony Mobil Oil Company, Inc., Appellant, v. William E. Boyland et al., Constituting the Tax Commission of the City of New York, Respondents.
    Argued November 14, 1960;
    decided January 19, 1961.

      Lawrence W. Krieger and Herbert C. Smyth for appellant.

      Charles H. Tenney, Corporation Counsel (Edith I. Spivaclc and Morris Handel of counsel), for respondents.
   Orders affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    Charles Lo Piccolo, Appellant, et al., Plaintiffs, v. Knight of Rest Products Corporation, Respondent.
    Argued November 18, 1960;
    decided January 19, 1961.

      Hyman Goldman and Frederick W. Scholem for appellant.

      John G. Reilly and Harold V. McCoy for respondent.
   Judgment affirmed, with costs. The jury’s verdict in favor of defendant, absent a motion by plaintiff for a directed verdict, is upon this record conclusive against him; consequently, we need not here decide whether plaintiff had made out a prima facie case. No opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    Adolph Tausik, Respondent, v. Helen T. Tausik, Appellant.
    Argued November 29, 1960;
    decided January 19, 1961.

      Sidney A. Wolff and Joseph F. Seminara for appellant.

      Meyer Kraushaar for respondent.
   Order affirmed, without costs; no opinion.

Motion to strike certain matter from the brief of respondent on the appeal herein granted upon the ground that the separation action was not considered below and reference to it is unnecessary to the result reached.

Concur': Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    The People of the State of New York, Respondent, v. George Herrmann, Appellant.
    Argued November 30, 1960;
    decided January 19, 1961.

      Nancy Carley and John F. X. Sheridan for appellant.

      Frank D. O’Connor, District Attorney (Morton Greenspan and Howard D. Stave of counsel), for respondent.
   Judgment reversed and a new trial ordered upon the authority of the dissenting memorandum in the Appellate Division. No opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    Great Atlantic and Pacific Tea Company et al., Appellants, v. City of New York et al., Respondents.
    Argued January 4, 1961;
    decided January 19, 1961.

      William E. Jackson, Edward J. Reilly, Jr., and George H. Bailey for appellants.

      Charles H. Tenney, Corporation Counsel (Morris L. Heath, Stanley Buchsbaum and Louis Pollack of counsel), for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    In the Matter of the Claim of Edward Bennett, Respondent, v. Dreier Structural Steel Company, Inc., et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued November 15, 1960;
    decided January 19, 1961.

      Ralph 8. Stowell and Joseph D. Edwards for appellants.

      Louis J. Lefkowitz, Attorney-General (Daniel Polanshy, Paxton Blair and Roy Wiederswm of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs to the Workmen’s Compensation Board, for the reasons stated in the opinion of the Appellate Division. No opinion.

Concur: Chief Judge Desmond and Judges Dye, Froessel and Burke. Judges Fuld and Van Voorhis dissent and vote to reverse and to dismiss the claim in the following memorandum: Claimant’s injury resulted from a brutal assault in which he was the aggressor. His behavior did not have its origin in the conditions created by his employment. It had its origin in claimant’s mental disease. The fact that the assault occurred in the employer’s premises was merely incidental. It would have been just as likely to have occurred in the streets or anywhere else. Claimant’s irrational behavior alone brought about the incident, which was not due to the nature or conditions of his employment and was neither work-induced nor work-connected. Even assaults by insane strangers are generally noncompensable, since they are unrelated to the employment location as a zone of danger (1 Larson, Workmen’s Compensation Law, § 11.32 [b], p. 148; Matter of Filitti v. Lerode Homes Corp., 244 N. Y. 291). Taking no part: Judge Foster.


text:
    The People of the State of New York, Respondent, v. Donald Frederick Warner, Appellant.
    Argued October 19, 1960;
    decided January 19, 1961.

      J oseph Gerace for appellant.

      Edwin G. O’Connor, District Attorney, for respondent.
   Judgment reversed and a new trial ordered. (See People v. Oakley, 9 N Y 2d 656, decided herewith.) No opinion.

Concur: Chief Judge Desmond and Judges Dye, Field, Froessbl, Van Voorhis, Burke and Foster.


text:
    The People of the State of New York, Respondent, v. John Green, Appellant.
    Argued November 29, 1960;
    decided January 19, 1961.

      Eugene A. Panfil for appellant.

      Carman F. Ball, District Attorney (Joseph 8. Mattina of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voobhis, Burke and Foster.


text:
    The People of the State of New York, Respondent, v. Jerry Lasher, Appellant.
    Argued December 1, 1960;
    decided January 19, 1961.

      Ernest Abdella for appellant.

      Morris Marshall Cohn, District Attorney, for respondent.
   Judgment reversed, the information dismissed and the fine remitted. We conclude, as the District Attorney with commendable candor acknowledged, that the information herein is insufficient in law. No opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voobhis, Burke and Foster.


text:
    Samuel Lapin, Appellant, v. Walsh Supply Co., Inc., Defendant, and Arthur J. Walsh, Respondent.
    Argued January 10, 1961;
    decided January 19, 1961.

      Benj. J. Jacobson for appellant.

      Harry Lipner for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    B & H Management Corp., Respondent, v. Hardware Mutual Casualty Company, Appellant.
    Argued January 3, 1961;
    decided January 19, 1961.

      David Neuwirth and August C. Flamman for appellant.

      Martin Heller and Joseph Heller for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    Blanche Bernard, Respondent, v. Seyopp Corp. et al., Appellants.
    Argued January 3, 1961;
    decided January 19, 1961.

      Dominick R. Santomenna for appellants.

      Arthur D. Spatt and Milton H. Reuben for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.


text:
    Gerald Belfert, Appellant, v. Peoples Planning Corporation of America, Respondent.
    Submitted January 16, 1961;
    decided January 19, 1961.
    Reported below, 11 A D 2d 760, 986.

      Morton M. Maneker for motion.

      Samuel Wolían opposed.
   Motion denied.


text:
    Joseph W. Littman, Plaintiff, v. Bache & Co., Defendant; In the Matter of Joseph W. Littman, Appellant, v. Grossman & Grossman, Respondents.
    Submitted January 16, 1961;
    decided January 19, 1961.

      Harry Grossman for motion.

      Richard J. Stull opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that no substantial constitutional question is involved.


text:
    In the Matter of the Claim of Agnes Crawley, Claimant, v. Charles Failla et al., Appellants, and Margaret Reuter et al., Respondents. Workmen’s Compensation Board, Respondent.
    Submitted January 9, 1961;
    decided January 19, 1961.
   Motion to amend remittitur denied upon the ground that our remittitur, as it now reads, awards. one bill of costs against respondents employer and carrier and respondent Workmen’s Compensation Board. (See Smyth v. City of New York, 203 N. Y. 584.) [See 6 N Y 2d 57.]


text:
    In the Matter of Jerry Sorrentino, Respondent, v. State Liquor Authority, Appellant.
    Submitted January 16, 1961;
    decided January 19, 1961.
    Reported below, 11 A D 2d 796.
   Motion for an order of substitution granted.


text:
    Michael Pruzan et al., Appellants, v. Board of Education of City of New York, Respondent.
    Submitted January 11, 1961;
    decided January 19, 1961.

      Charles H. Tenney, Corporation Counsel (Leo A. Larkin of counsel), for motion to dismiss appeal and opposed to motion for a certificate that a constitutional question was involved, etc.

      Harold G. Israelson and Arnold B. Streit for motion for a certificate that a constitutional question was involved, etc., and opposed to motion to dismiss appeal.
   Motion to dismiss appeal granted and appeal dismissed, with costs and $10 costs of motion, upon the ground there are questions involved other than the constitutional validity of a statute (N. Y. Const., art. VI, § 7, subd. [2]; Civ. Prac. Act, § 588, subd. 4).

Motion for a certificate that a constitutional question is involved on the appeal herein denied.

Motion to dispense with the printing of Legislative Document No. 32 in the. record denied.

Motion for a preference denied.


text:
    In the Matter of Joseph V. Fernandes et al., Appellants, v. Bernard T. Silverman et al., Constituting the Civil Service Commission of the City of Yonkers, Respondents.
    Argued January 11, 1961;
    decided January 20, 1961.

      Wilbur J. Spitzer for appellants.
    J. Raymond Hannon, Corporation Counsel (John, F. Trainor of counsel), for respondents.

      Morton N. Wekstein for William Sickley et al., amici curice.

      Louis J. Lefkowitz, Attorney-General (Paxton Blair and Milton Kaplan of counsel), for New York State Civil Service Commission, amicus curice.

   Order affirmed, without costs; no opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster.