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

text:
    In the Matter of the Accounting of Bank of New York, as Trustee under the Will of Margaret E. Villalonga, Deceased, Respondent. Amy V. Whittemore, Appellant; Jane T. Mann et al., Respondents.
    Argued January 14, 1959;
    decided July 8, 1959.

      Milton Sargoy and Thomas M. Aron for appellant.
    I. The rule in New York is that the word “ children ” means sons and daughters, and not grandchildren or remoter descendants, unless the will indicates an unmistakable intent to the contrary. (Pimel v. Betjemann, 183 N. Y. 194; Matter of King, 217 N. Y. 358; Matter of Pulis, 220 N. Y. 196; Matter of Schaufele, 252 N. Y. 65; Matter of Truslow, 140 N. Y. 599; Matter of Keogh, 126 App. Div. 285, 193 N. Y. 603; Matter of Barnes, 286 App. Div. 346, 2 N Y 2d 787; Matter of Curtis, 252 App. Div. 256, 278 N. Y. 589.) II. The authorities do not support the rule enunciated by the Appellate Division. (Prowitt v. Rodman, 37 N. Y. 42; Soper v. Brown, 136 N. Y. 244; Matter of Keogh, 126 App. Div. 285, 193 N. Y. 603; Matter of Ordway, 196 N. Y. 95; Matter of Currier [Woodlawn Cemetery], 300 N. Y. 162; Matter of Clarke, 145 Misc. 660.) III. The rule enunciated by the Appellate Division does not apply to the facts of this case. (Matter of Schaufele, 252 N. Y. 65; Matter of Barnes, 286 App. Div. 346, 2 N Y 2d 787; Matter of Curtis, 252 App. Div. 256, 278 N. Y. 589; Matter of Pulis, 220 N. Y. 196; Pimel v. Betjemann, 183 N. Y. 194.)

      Alexander R. Hamilton for Jane T. Mann, respondent.
    I. Inherent in the general rule excluding grandchildren from the term ‘ ‘ children ’ ’ are exceptions where justice or reason requires it, based upon a showing of a contrary intention from the context of remaining portions of the will, or upon a consideration of surrounding facts and circumstances. (Matter

      of Schaufele, 252 N. Y. 65; Matter of Truslow, 140 N. Y. 599; Prowitt v. Rodman, 37 N. Y. 42; Soper v. Brown, 136 N. Y. 244.) II. The construction of the courts below is amply supported by the authorities. (Matter of Schaufele, 252 N. Y. 65; Matter of Keogh, 126 App. Div. 285, 193 N. Y. 603; Matter of Pulis, 220 N. Y. 196; Matter of Truslow, 140 N. Y. 599; Matter of Wolfe, 201 Misc. 226; Matter of Hurry, 193 Misc. 360; Matter of Barnes, 286 App. Div. 346, 2 N Y 2d 787; Matter of Curtis, 252 App. Div. 256, 278 N. Y. 589.)

      Harry Suchman, in person, and Hyman Bravin for Harry Suchman, special guardian for Donald Cameron and others, infants, respondents.
    I. The will should be construed as including all descendants of later generations within the meaning of the word “ children.” (Matter of Pulis, 220 N. Y. 196; Matter of Schaufele, 252 N. Y. 65; Prowitt v. Rodman, 37 N. Y. 42; Roe v. Vingut, 117 N. Y. 204; Haug v. Schumacher, 166 N. Y. 506; Williams v. Jones, 166 N. Y. 522; Matter of Miner, 146 N. Y. 121.) II. The word “ children ” designated a class, the benefits under which are confined to those who come within the category at the time when distribution or division is directed to be made, excluding individuals not surviving at that time.
   Chief Judge Conway.

The testatrix, Margaret E. Villalonga, drew a will in December, 1923, two years prior to her death. Her will is brief, and provides as follows:

‘ ‘ Second : I give and bequeath One Thousand Dollars ($1,000.) in cash to my great-niece and namesake, Margaret Russel Graves.
‘ ‘ Third : I give and bequeath my opal and diamond ring to my niece, Matille Graves.
"Fourth : I give and bequeath my cluster diamond ring to my niece, Leah Peoples.
'‘Fifth : I give and bequeath my solitaire diamond ring, and my watch and chain to my granddaughter, Amy Villalonga.
Sixth: All the rest of my jewelry I direct to be divided as equally as possible between my two granddaughters, Jane C. Villalonga and Amy Villalonga.
‘ ‘ Seventh : I give, devise and bequeath all the rest, residue and remainder of my property, both real and personal, wheresoever the same may be found, to my executors, hereinafter named, in trust, however, to keep the same invested, and pay over the income thereof to my son John L. Villalonga, during his life and upon his death the income to go to his wife, Constance C. Villalonga, and upon the death of both my son, John L. Villalonga, and Ms wife, I direct the principal to be paid over to any children surviving them, but in case no cMldren survive Mm, or his wife, I will and direct that the said property be distributed between the children of my nephew, R. F. Craves. ’ ’ (Emphasis added.)

The life beneficiaries had two daughters, Amy and Jane C. Jane C. did not survive the life tenants, but left a daughter, Jane T., who now claims that she is entitled to share equally in the remainder with Amy, her aunt. Amy contends that, as the sole surviving immediate offspring of the life tenants, she alone is entitled to the remainder given to the surviving “ children ’ ’ of the life tenants. Jane T., however, argues that she also is included in the word “ children” as the sole surviving child of Jane C. The resolution of this controversy depends upon the intention of the testatrix. When she gave the remainder to the surviving “ children ” of the life tenants, did she contemplate only surviving immediate offspring, or did she intend that surviving immediate offspring should share the remainder with children of predeceased immediate offspring?

In the leading case of Matter of Schaufele (252 N. Y. 65) we stated the rule thus: “ * * * grandchildren are never interpreted as children unless the will as a whole shows that unmistakable intent. The term can be so interpreted only when reason demands it [citing cases]. Before such a construction is justifiable, other expressions or clauses in the will must be found tending to contradict the use of a word which denotes immediate offspring, and to reveal a design to include descendants of a later generation” (pp. 67-68, emphasis added). The same rule of law is expressed in numerous other cases. (See Matter of Barnes, 2 N Y 2d 787; Matter of Watson, 262 N. Y. 284; Matter of Meng, 227 N. Y. 264, 272; Matter of King, 217 N. Y. 358, 361; Pimel v. Betjemann, 183 N. Y. 194, 200; Matter of Truslow, 140 N. Y. 599, 603; Matter of McKim, 115 Misc. 720, 722; Palmer v. Horn, 84 N. Y. 516, 521; Magaw v. Field, 48 N. Y. 668; Matter of Phipard, 182 App. Div. 357, 358, affd. 223 N. Y. 676; Davies v. Davies, 129 App. Div. 379. 382-383, affd. 197 N. Y. 598; Matter of Keogh, 126 App. Div. 285, 287; Matter of Breithaupt, 10 Misc 2d 954, 956; Matter of Greenberg, 198 Misc. 1079, 1081; Matter of Harris, 138 Misc. 287, 288.) Under these eases it is clear that we must reverse the orders below and hold that Amy Villalonga Whittemore is alone entitled to the remainder of the estate of Margaret E. Villalonga.

This will is a simple one, cast in ordinary language and not afflicted with the weakness of ambiguity. In the two instances where the testatrix refers to the primary remainderman, she describes that class as surviving “ children ” only. There is no interchangeable use made of the terms “ children ” and “issue.” Nor does the general distributive scheme disclose a testamentary purpose to benefit children of predeceased immediate offspring together with surviving immediate offspring of the life tenants. Moreover, the use by the testatrix of the terms “ granddaughter ” and “ granddaughters ” in paragraphs Fifth and Sixth denies force to the claim that when she said “ children ” she also meant to include certain grandchildren. There is nothing in this will to support the position of the respondent Jane T. Mann unless, as she strenuously argues, the presence of the gift over to collaterals in the event of a total failure of “ children ” is a sufficient indication of an intention to enlarge upon the primary meaning of the word “ children.”

The testatrix provided that ‘ ‘ in case no children survive him, or his wife [the life beneficiaries], I will and direct that the said property be distributed between the children of my nephew, R. F. Graves.” This provision, contends the respondent, is sufficient indication that the testatrix intended to give the word “ children ” a broader meaning than immediate offspring. The argument is made that if the testatrix intended “ children ” to mean only immediate offspring then, in the event of a total failure thereof, the whole of the remainder would go to collaterals to the exclusion of direct descendants of the testatrix. We are told that this could not have been the intent of the testatrix, and that, therefore, the word “children” must be held to include Jane T., the daughter of a deceased immediate child of the life tenants. Great reliance is placed upon the presumption against disinheritance of descendants in favor of collaterals, particularly as expressed in the case of Prowitt v. Rodman (37 N. Y. 42). However, we are not persuaded either by respondent Jane T. Mann’s reasoning or by the authority cited in support thereof. It is of no moment what the intent of the testatrix would have been, or what would have been presumed concerning it, in the event there were no surviving immediate offspring. The controlling fact is that the life tenants' were survived by an immediate child, the appellant. That the testatrix might have intended to prefer great-grandchildren over collaterals does not at all lead to the conclusion that she intended to benefit a great-grandchild equally with her grandchild. The gift over to ■ collaterals here is inoperative, and, therefore, the presumption against disinheritance is not called into effect. Moreover, the presumption against disinheritance is- a mere rule of construction and, as is true of all such rules, may not properly be invoked or applied except where some ambiguity or lack of clarity requires its application for the purpose of resolving a doubt otherwise introduced by the terms of the will (Goodwin v. Coddington, 154 N. Y. 283, 286; Matter of Keogh, supra, p. 289). As we wrote in Matter of Bisconti (306 N. Y. 442, 445): “The application of the rules of construction of wills is for the purpose of determining the intent of the testator where that intent is not clearly expressed by the testamentary words, and the rules of construction are to be disregarded when the language is clear and definite. It is well established that rules of construction are merely subsidiary aids. (Matter of Watson, 262 N. Y. 284, 293, 294.) If intention of á will-maker is to be found in the words Used in the will and these are clear and definite there is no power -to change them (Matter of Watson, supra). As is stated "in Davids on the New York Law of Wills:'1 When intention can be ascertained as a fact from the instrument itself * * * ' there is no occasion for a presumption in respect thereof, and the decision should hot be affected by the rules in question. Hence the rules of construction are to be disregarded where the decedent’s intention is clearly or sufficiently manifest, or where the language of the instrument is plain and its meaning obvious;’ ' (Vol. I, § 491, p. 805; see Matter of Rollins, 271 App. Div. 982, affd. 297 N. Y. 612.) ” There is nothing unclear or ambiguous-here as to. who is entitled to take the remainder. The testatrix has given it to the surviving “ children” of the life beneficiaries, and both under the law and the terms of this will “ children ” means immediate offspring.

The case of Prowitt v. Rodman (supra) does not dictate a different result. In that case this court said: “ In the case of a contingent future gift to the children of the first taker, followed by a limitation over, for want of such, the presumption is in favor of the first taker’s posterity to his remoter descendants in preference to the donee over ” (p. 58). However, in Prowitt there were no surviving immediate offspring of the first taker and the question was whether the property would go to remoter descendants of the life tenant or to her collaterals. Furthermore, in the Prowitt case the words “ children ” and “ issue ” were used interchangeably to refer to the same class, thereby resulting in a definite ambiguity as to the make-up of that class. Thus, in that case it was the uncertainty as to the class which required the application of a rule of construction, and the presumption against disinheritance was referred to because the question presented was whether collaterals should take pursuant to the substitutionary gift in preference to remote direct descendants. There was no suggestion whatever in the Prowitt case that the presence of a limitation over to collaterals per se warrants a broader construction of the word “children” than immediate offspring where there is otherwise no doubt that such is its significance. Soper v. Brown (136 N. Y. 244), also relied upon heavily by respondent Jane T. Mann, is concerned only with the meaning of the word “ issue ” and is not relevant here.

It may well be that in some cases the presence of a limitation over to collaterals may be a “ factor ” tending to indicate a testamentary intent to broaden the meaning of “children”. (Restatement, Property, § 285, comment f.) However, it is clear that the mere presence of such a provision does not in and of itself establish an “unmistakable” intent so to do in a case such as this, where there is otherwise not a fragment of a doubt; where there is a person in existence who answers the primary meaning and the gift over is inoperative; where other portions of the will support the primary meaning of the word; and where there is nothing so unreasonable or unjust about the disposition so as to create grave doubt that such was the intention of the testatrix.

The fact that the disposition made in this will may not be in complete accord with individual notions of 'equitable distribution is not sufficient to warrant the interference of the courts. It is well settled that “ Language should not be strained, nor words given an unusual meaning, in order to work out a result favorable to the issue of a deceased child. * * * ” (Matter of Truslow, 140 N. Y. 599, 605). Of course, if the language employed “is equally susceptible of one or another interpretation, we should, on every principle of right, and within the spirit of all the authorities, give it that which is most equitable and consonant with the dictates of justice.” (Matter of Paton, 111 N. Y. 480, 486.) However, as already mentioned, there is no ambiguity in this will which would allow a different interpretation from that which we have given it. The word ‘1 children ’ ’ is not, in itself, ambiguous. Indeed, it has a very common and definite meaning upon which attorneys and their clients are entitled to rely when drafting wills. “ Children” means immediate offspring, and we reiterate the rule of the Schaufele case (supra, p. 67) that it will never be held to include grandchildren “ unless the will as a whole shows that unmistakable intent.” Only by so holding will there be the stability and consistency so essential to the law of wills if it is to accomplish its function.

The order should be reversed, with costs to all parties appearing and filing briefs, payable out of the estate.

Desmond, J. (dissenting).

I would affirm here so as to conform this decision to the rule which is ancient in England and in America. .

In Prowitt v. Rodman (37 N. Y. 42) this court nearly a century ago reviewed the already numerous authorities on the question of interpreting the word “ children ” to include-grandchildren and made the statements, many times thereafter repeated in the New York cases, that the word “ children ” is a “‘very flexible expression’” (p. 55) and (p. 54, quoting Chancellor Kent) that “ ‘ Children as well as issue may stand in a collective sense for grandchildren, where the justice or reason of the case requires it.’ ” At page 58 in the Prowitt opinion our court set down in summary two propositions of law, both old in 1867 and both still in effect:

‘'1. That the term ‘ children ’ may include issue however remote, and will be held so to include whenever the reason of the thing demands it.
“2. In case of a contingent future gift to the children of a first taker, followed by a limitation over for want of such, the presumption is in favor of the first taker’s posterity to his remoter descendants in preference to the donee over.” Prowitt rule No. 2 describes a will just like the one we are here interpreting.

In Matter of Paton (111 N. Y. 480) the authorities were again reviewed. Again it was said that the word “ children ” is a flexible expression. Then the court set down the rule in this form (p. 486): “ That meaning should be preferred, when the reason of the thing sustains it, which permits the children of a deceased child to inherit.” (See similar language in Beebe v. Estabrook, 79 N. Y. 246, 251; Matter of Brown, 93 N. Y. 295, 298; Matter of Truslow, 140 N. Y. 599, 605.) Our law, past and present, on this subject is accurately stated in New York Law of Wills by Davids (Vol. 2, p. 1108) in terms which demand an affirmance here: 11 Where the will creates a life estate or trust, and gives the remainder or corpus to the children ’ of the life tenant or beneficiary the word will be held to include grandchildren, the immediate descendants having died during the lifetime of their parent ” (see Matter of Brown, 93 N. Y. 295, supra, and Smith v. Lawrence, 66 Hun 362). As Judge Batallo wrote in the Brown case (p. 300): “ It is not reasonable to impute to the testator the intention to exclude wholly from the inheritance, the descendants of either of his daughters ”.

It seems to me that “ reason and justice ” dictate that this Villalonga will be construed to mean that if either of the two grandchildren of testatrix should be dead when their second parent dies, the children of the deceased grandchild or grandchildren of testatrix should take. If this be not the meaning, then the testatrix was making a very unusual disposition in that, if one grandchild of hers should survive, that grandchild would get the whole estate to the exclusion of her sister’s children, and, if both her grandchildren should fail to survive their parents, their children would get nothing and the estate would go to grandnieces and grandnephews.

Of course, New York cases can be cited on either side of this question but the great majority of them apply the broader meaning. Quite a recent illustration is Matter of Blodgett (286 N. Y. 602) where we affirmed the determination of the lower courts that 11 children ’ ’ included grandchildren.

I suggest that from all these case taken together there emerge these rules or guides:

(1) That if it is in any way possible the courts, to achieve a reasonable result, construe ‘ children ’ ’ as including grandchildren. I realize that Matter of Schaufele (252 N. Y. 65, 67) says that there must be an “ unmistakable intent ’ ’ to include grandchildren but no other important case agrees to that, and even the Schaufele opinion itself (p. 67) quotes with approval the ancient Prowitt rule (supra) that grandchildren should be included ‘ ‘ when reason demands it ”;

(2) That while the word children ” is to be taken literally when the testator appears to be referring to his own living children as named individuals (see Matter of Barnes, 2 N Y 2d 787) the other construction is more appropriate when the “ children ” are children of his descendants so that he may be considered to be referring rather to a class or group than to individuals;

(3) That, since this is a construction question to be resolved according to reason and probable intent, we ordinarily affirm a not unreasonable construction adopted by the two courts below.

The order should be affirmed.

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

Order reversed and matter remitted to the Surrogates’ Court for further proceedings in accordance with the opinion herein, with costs to all parties appearing separately and filing separate briefs payable out of the estate.


source: Caselaw Access Project

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

license: Public Domain

text:
    The People of the State of New York ex rel. George Edward Sillifant, Appellant, against Sheriff of the City of New York, Respondent.
    Argued March 11, 1959;
    decided July 8, 1959.

      William W. Kleinman, Lawrence Peirez said Henry W. Schober for appellant.
    I. The Grand Jury has no power to compel a witness to complete and answer a questionnaire in addition to giving oral testimony. (Matter of Mullen v. Halleran, 177 Misc. 734; Matter of Bernoff v. Amoroso, 188 Misc. 845; People ex rel. Drake v. Andrews, 197 N. Y. 53; Matter of Spector v. Allen, 281 N. Y. 251; People v. Stern, 3 N Y 2d 658; City of Buffalo v. Hanna Furnace Corp., 280 App. Div. 623,305 N. Y. 369; Fromme v. Gray, 14 Misc. 592; People v. Finkelstein, 202 Misc. 1080; Matter of Steingut v. Imrie, 270 App. Div. 34; Matter of Doyle, 257 N. Y. 244; Matter of Cole [Reiss], 208 Misc. 697; Matter of Slipyan [Shapiro], 208 Misc. 515.) II. Filling out the questionnaires as directed herein does not constitute the furnishing of legal documentary evidence nor is it a deposition as provided in section 248 of the Code of Criminal Procedure. HI. The questions contained in the questionnaire are not a subject in dispute at this time.

      Lester G. Knopping for Civil Service Forum, amicus curiae, in support of appellant’s position.
    Since an affidavit read to the Grand Jury outside of the situs of the Grand Jury room does not constitute legal evidence receivable by a Grand Jury, and, since such body has been precluded from convening at a place other than the Grand Jury room, it follows that a witness legally cannot be compelled to fill out a financial questionnaire at a place other than the situs of the Grand Jury room. (People v. Doe, 247 App. Div. 324, 272 N. Y. 473; People v. Glen, 173 N. Y. 395; Matter of Mullen v. Halleran, 177 Misc. 734; Matter of Spector v. Allen, 281 N. Y. 251; People v. Pisanti, 179 Misc. 308; Costello v. United States, 350 U. S. 359; People v. Albero, 119 Misc. 339; People v. Tatum, 60 Misc. 311; Matter of Doyle, 257 N. Y. 244; People ex rel. Drake v. Andrews, 134 App. Div. 32, 196 N. Y. 538,136 App. Div. 907, 197 N. Y. 53; Matter of Slipyan [Shapiro], 208 Misc. 515.)

      Edward S. Silver, District Attorney (Aaron E. Koota and William Sonenshine of counsel), for respondent.
    The Grand Jury, investigating whether employees of the Department of Buildings of the City of New York have committed crimes, possessed the power to direct relator to accept the financial questionnaire, make written answers thereon to the questions, submit the completed form to the Grand Jury at a subsequent session and testify regarding said answers. (People v. Stern, 3 N Y 2d 658; People v. Connolly, 253 N. Y. 330; Matter of Davies, 168 N. Y. 89; Matter of Spencer, 137 App. Div. 330; First M. E. Church v. Dixon, 178 Ill. 260; Matter of Board of Comrs. of Cook County, 146 Minn. 103; Skelly Oil Co. v. Pruitt & McCrory, 74 Okla. 232; People v. Doe, 247 App. Div. 324; Blair v. United States, 250 U. S. 273; People v. Workman, 308 N. Y. 668; People v. O’Brien, 281 App. Div. 982, 305 N. Y. 915; People v. Vigorito, 281 App. Div. 1043; People ex rel. Valiente v. Dyckman, 24 How. Prac. 222; Allen v. State, 183 Md. 603.)
   Desmond, J.

We see in this Grand Jury questionnaire procedure no violation of section 248 or section 249 of the Code of Criminal Procedure or of any other law. Eelator, an inspector employed by the New York City Department of Buildings, was subpoenaed before the Grand Jury, appeared there and executed a waiver of immunity. After being sworn, he was handed a questionnaire consisting of four pages and was directed by the Grand Jury to take it away with him, fill out the answers in writing and later to return to the Grand Jury to swear that the answers were true and to be questioned further as to those answers if the Grand Jury should so desire. Relator, on advice of his counsel and on the ground that the Grand Jury had no such power, refused to do any of this. Later, he refused to comply with a County Court order of compulsion and was found guilty of criminal contempt (Judiciary Law, § 750, subd. 3).

No one doubts that this Grand Jury, investigating alleged bribery and extortion involving public employees, could compel this relator to answer orally the same questions which are printed in the questionnaire (Code Crim. Pro., §§ 245, 253; see People v. Connolly, 253 N. Y. 330). The questions are simple ones asking for details of the income of relator and members of his household, the names of banks in which he and his family have accounts, the existence of safe-deposit boxes, life insurance and other policies, stock brokerage accounts and of his charge accounts, if any. The questionnaire calls also for approximate figures of living and personal expenses and for relator’s financial balance sheet. No special skill or assistance is necessary for the answering of such questions but they are the sort that a person would not ordinarily be able to answer from unaided memory. Thus it was reasonable and sensible to give relator an opportunity to fill out the answers at a time and place convenient to him after checking his records, etc.

If relator had been called before the Grand Jury and had been questioned orally on these same matters, he undoubtedly would have said that he could not answer from memory. It would then have been appropriate for the Grand Jury to direct him to go to his home or office, assemble the information and come back and testify to it:' The same thing is being done here except that he is directed to write out the information on a prescribed form.

Of course, in some other instances oppressive use of the questionnaire method may be attempted but the courts can deal with that situation when it comes (see Matter of Cole [Reiss], 208 Misc. 697).

Burke, J. (concurring).

I agree with Judge Desmond’s opinion affirming appellant’s conviction for criminal contempt.

On February 2, 1959, pursuant to a direction of a County Judge, the Second Additional Grand Jury of the County of Kings commenced an investigation to determine whether the crimes of bribery and conspiracy were being committed by employees and personnel in the office of the Division of Housing and Division of Buildings of the Department of Buildings of the City of New York in the Borough of Brooklyn, County of Kings. The investigation was prompted by complaints of citizens and reports in the public press that such employees had been guilty of accepting bribes and graft.

There is no question that where there is evidence of corruption that the People of the City of New York are entitled to an accounting by their public servants of the public employees’ financial assets for the purpose of ascertaining whether there is graft or corruption or misfeasance in office by these public servants. In the past in the cases of a few individuals, it has been accomplished by oral examination before a Grand Jury.

In this case the appellant is an inspector in the department, one of approximately 300 employees assigned to duties in the Borough of Brooklyn, County of Kings. He, after signing a waiver of immunity, refused upon the advice of his counsel to fill out and return a financial questionnaire which, as Judge Desmond states, consisted of four pages containing simple questions 6 ‘ asking for details of the income of relator and members of his household, the names of banks in which he and his family have accounts, the existence of safe-deposit boxes, life insurance and other policies, stock brokerage accounts and of his charge accounts ”. After having been adjudged guilty of criminal contempt, fined and sentenced to imprisonment, he sought a writ of habeas corpus which has been denied.

The Grand Jury, he asserts, has not been empowered by the People of the State to compel a public employee to complete and answer a questionnaire in addition to giving oral testimony. The Legislature, it is argued, has provided that the only legal evidence permitted is that secured by legal documentary proof by records actually in existence, certain depositions and the oral testimony of witnesses actually produced and sworn (Code Crim. Pro., §§ 248, 249, 392; City of Buffalo v. Hanna Furnace Corp., 280 App. Div. 623, revd. on other grounds 305 N. Y. 369).

A public employee, therefore, who has obeyed the command, of a subpoena, has appeared before the Grand Jury, has permitted himself to be sworn and has agreed to answer all proper questions, but states he has no financial status records actually in existence, the appellant concludes, has complied fully with the mandate of the statutes and may not be punished for contempt.

The question to be determined is whether the Grand Jury had the power to direct a witness who has waived immunity to answer a simple questionnaire dealing with the facts of the financial status of a person which can be answered in a reasonable time without any professional help or advice.

We believe a Grand Jury has such power. No sections of the Code of Criminal Procedure or decision of any appellate court authorize the suppression of this kind of an inquiry by a Grand Jury.

Since the Grand Jury has the power to investigate corruption, bribery and other crimes committed in the Department of Buildings, the grant of express statutory authority to the Grand Jury imports the existence of implied powers reasonably essential to the investigation and uncovering of crime and corruption. Obviously, evidence of possession of financial assets or income in amounts not justified or accountable for by salary and other legitimate origins is a pertinent source of inquiry where the misconduct of a public officer is the subject of probe (People v. Connolly, 253 N. Y. 330). Under such circumstances, to ascertain whether employees of a department accepted bribes, an inquiry into their financial status is a method of procedure reasonably essential to the proper discharge of the Grand Jury’s duty to examine into the willful misconduct of public officials.

Inquiry through the media of questionnaires is a method appropriate to the express power and duty of a Grand Jury to investigate corruption in public office. The best evidence of financial status would be a completed financial questionnaire, prepared by the public officer.

The request to answer a questionnaire in writing violates no fundamental right or prerogative of a witness before the Grand Jury. This court has sustained convictions of crimes predicated upon financial questionnaires. (People v. Workman, 308 N. Y. 668; People v. O’Brien, 281 App. Div. 982, affd. 305 N. Y. 915; People v. Vigorito, 281 App. Div. 1043, leave to appeal denied.)

The argument that this duty is discharged when he speaks on the witness stand or produces documents already in existence in response to a subpoena duces tecum has not been accepted by the courts. The courts have the power not only to compel answers from witnesses, but to require them to do things and acts incidental to answers. (See Allen v. State, 183 Md. 603, Ann. 171 A. L. R. 1144 et seq.)

It may be that, if the questions are too complicated and involved, the witness may attack items on the questionnaire as being an oppressive exercise of the power of a Grand Jury to compel answers thereto (Matter of Cole [Reiss], 208 Misc. 697, 703). But the broad powers of a Grand Jury investigating into corruption in public office should not be hampered and curtailed by judicial contentions as to whether it should adopt one approach as distinguished from another.

As the Grand Jury has the right to compel this witness to answer each of these simple questions orally in the presence of the Grand Jury, it has the power in this case to compel him to answer the questions in writing on a brief questionnaire and return it to the Grand Jury and with it to testify orally as to its contents.

The entire procedure from the delivery of the questionnaire to the witness and its return to the Grand Jury with it completed is embraced in the concept of ‘ ‘ testimony ’ \

Any suggestion that each one of the 300 employees of the Department of Buildings in the Borough of Brooklyn can be interrogated only orally would be manifestly absurd. If the information was not within the memory of each one of the 300 witnesses then each of them would be required to be excused and compelled to return at a later date to answer further questions, with further adjournments until the entire investigation would be frustrated and the ends of justice defeated. It would effectively impede the Grand Jury in the discharge of its statutory duty to investigate corruption among public officials.

The procedure adopted by the Grand Jury is logical and equally advantageous to the witness and the Grand Jury. It does not trespass on any fundamental or constitutional rights of the witness or constitute a hardship to the witness.

As the appellant has failed to show that he has been subjected to oppressive process in compelling his testimony, the order appealed from should be affirmed.

Chief Judge Conway (dissenting).

The sole issue presented is whether or not the Grand Jury, in the course of a “ John Doe ” investigation into alleged crimes by the employees of the Department of Buildings of the City of New York, possessed the power to direct an employee of that department to fill out a financial questionnaire outside the Grand Jury room, submit it completed to the Grand Jury swearing that his answers contained therein were true, and testify under oath regarding those answers. We have concluded that it is possessed of no such power.

On February 2, 1959 the Second Additional Grand Jury in Kings County began an investigation to determine whether the crimes of bribery and conspiracy were being committed by the personnel of the Division of Housing and Division of Buildings of the Department of Buildings in the County of Kings. The relator, an inspector of plastering in that department, was, pursuant to a subpoena, summoned as a witness before the Grand Jury. In keeping with appropriate statutes pertaining to waiver of immunity by public employees, Sillifant executed such a waiver (New York City Charter, § 903; N. Y. Const., art. I, § 6; Penal Law, § 2446). Upon being sworn by the foreman of the Grand Jury, relator testified, answering all oral questions asked of him. The District Attorney then had a financial questionnaire marked in evidence and asked Sillifant if he would be willing to take it home with him, fill it out, return with it to the Grand Jury on a date to be fixed, and swear that his answers contained therein were true. Relator, on the advice of counsel, declined upon the ground that the Grand Jury had no legal power to compel him to complete such questionnaire. The Grand Jury, after voting on the matter, directed relator to complete the document. Sillifant again refused upon the same ground as previously stated. Pursuant to the Grand Jury’s direction, the District Attorney applied for and obtained a court order to compel relator to comply with the Grand Jury’s direction. Upon the relator’s refusal to comply with that order he was found guilty of criminal contempt (Judiciary Law, § 750, subd. 3). A 30-day jail sentence plus a fine of $250 were imposed as a result.

From its inception the Grand Jury has served a twofold purpose: (1) to investigate and uncover crime and corruption; (2) to protect the citizen from unjustified prosecution at the hands of the State (People v. Naughton, 38 How. Prac. 430, 435-438; Matter of Funston, 133 Misc. 620, 621). In carrying out its task of investigating crime and corruption, there is no doubt that the Grand Jury is clothed with wide powers insofar as the scope of its inquiry is concerned (Code Crim. Pro., §§ 245, 253; 38 C. J. S., Grand Juries, § 34). Nevertheless, that body is dependent for its power and indeed for its very existence upon the Constitution and the Legislature of our State as that body’s mandates are manifested by statutory pronouncements in the Code of Criminal Procedure (N. Y. Const., art. I, § 6; Code Crim. Pro., §§ 223-272; People v. Stern, 3 N Y 2d 658, 661; People v. Glen, 173 N. Y. 395, 400-401; Matter of Cole [Reiss], 208 Misc. 697, 699, 701-702, 703; People v. Brinkman, 205 Misc. 337, 340-341; People v. Brickner, 8 N. Y. Crim. Rep. 217, 221; Matter of Gardiner, 31 Misc. 364, 372; see Matter of Osborne, 68 Misc. 597, 601, 604; People v. Blair, 17 Misc 2d 265). So it is that the Legislature, in the exercise of its power, has seen fit by section 249 of the Code of Criminal Procedure to limit the evidence receivable by the Grand Jury to “ none but legal evidence ”. Furthermore, by virtue of section 248 of the code, the Legislature has prescribed the method by which the Grand Jury may receive evidence as follows:

In the investigation of a charge, for the purpose of indictment, the grand jury can receive no other evidence than,
1. Such as is given by witnesses produced and sivorn before them, or furnished by legal documentary evidence; or “2. The deposition of a witness, in the cases mentioned in the third subdivision of section eight.” (Emphasis added.)

The answer to the issue presented here depends upon the construction to be placed upon section 248.

Under subdivision 1 of section 248, the Legislature has chosen to use the words 1 ‘ produced and sworn ’ ’ conjunctively not disjunctively. There is nothing in the context of the statute or surrounding circumstances which suggests that the Legislature used the word “ and ” loosely, inaccurately, or erroneously, that is, that it intended or ” when it said ‘ ‘ and ’ ’. On the contrary, the’ choice of language .utilized clearly imports the appearance of’ a. witness .before the Grand .Jury, the swearing in of the witness, and the reception of his oral testimony by that body in response" to all relevant questions. Any other interpretation would amount to an unjustified enlargement of a statutory provision—in short, to judicial legislation.

The suggestion has been made that the use of a financial questionnaire, in the manner in Avhich the Grand Jury attempts to employ it here, is permissible within the meaning of that part of subdivision 1 of section 248 which refers to “ legal documentary evidence However, it is manifest that these words relate to books, records and documents already in existence and such as are subject to production pursuant to a subpoena duces tecum. The language of the statute may not be twisted so as to include a direction by the Grand Jury to a witness to manufacture of create evidence.

Certainly there is no basis for the utilization of the questionnaire, under subdivision 2 of section 248, as a deposition in place of relator’s bral testimony. This is so because a witness’ deposition may only be read to a' Grand Jury upon a satisfactory, showing to the court that he is dead or insane, or cannot Avith due diligence be found in the State (Code Crim. Pro., § 248, subd. 2; § 8,' subd. 3). None of these conditions being present, it follows the Grand Jury was without power to employ a financial, questionnaire as a deposition in place of the oral testimony of the relator.

The cases of People v. Workman (308 N. Y. 668) and People v. O'Brien (305 N. Y. 915), wherein completed financial questionnaires Were used as a basis for perjury indictments by the Grand Jury and eventual convictions of that crime, have no application since the question of the power of the Grand Jury to compel the completion of the questionnaire was not presented nor passed upon.

The respondent Sheriff urges that we allow the procedure here attempted mainly on the ground that it is expedient in facilitating the Grand Jury in carrying on its investigatory duties. Expediency, however, does not warrant our rewriting a statute. That is for the Legislature. Moreover, were we to agree with respondent’s position the door would be opened for the carrying on of Grand Jury investigations by affidavit. The dangers inherent in permitting such a procedure in the absence of a clear legislative mandate are obvious. We are not unmindful of the public interests, of the insistent hope and need that the ways of bribers and corruptionists shall be exposed to an indignant world. Commanding as those interests are, they do not supply us with a license to palter with the truth or to twist what has been written in the statutes into something else that we should like to see. * * * A community whose judges would be willing to give whatever law might gratify the impulse of the moment would find in the end that it had paid too high a price for relieving itself of the bother of awaiting a session of the Legislature and the enactment of a statute in accordance with established forms.” (Per Cardozo, Ch. J., in Matter of Doyle, 257 N. Y. 244, 268.)

The decision here does not render impotent the Grand Jury in carrying on its current investigation of alleged corruption in the Department of Buildings in the County of Kings. Methods proven by time and experience to be wholly adequate to obtain the information it seeks here by means of a financial questionnaire are at its disposal.' A departure from those methods, such as contemplated in the present case, must find its sanction in a Legislative pronouncement.

There is no indication that relator has acted with an intention to impede the Grand Jury’s investigation. On the contrary, he responded to the subpoena issued by that body and has been ready and willing, and indeed continues to be ready and willing, to testify orally to any and all relevant questions propounded do him by that body. That is all he is required to do. No oral direction or clarification by the District Attorney or the foreman of the Grand Jury can expand or change the command of the subpoena (Matter of Spector v. Allen, 281 N. Y. 251, 260).

The order of the Appellate Division should.be reversed, the writ sustained and the relator released.

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

Order affirmed.


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

text:
    The People of the State of New York, Respondent, v. Caswell-Massey Co., Ltd., Milton Taylor and Ralph Taylor, Appellants.
    Argued April 14, 1959;
    decided July 8, 1959.

      F. W. H. Adams, Donald W. Smith and George C. Mantzoros for appellants.
    I. Section 118c fails to meet the standards of definiteness required of penal statutes and is, therefore, invalid. (United States v. Cardiff, 344 U. S. 174; People v. Grogan, 260 N. Y. 138.) . II. Assuming that section. 118c- is- not fatally ambiguous, the courts below wrongfully interpreted it to prohibit telephoned prescriptions following a written prescription. (People v. Moore, 142 App. Div. 402, 201 N. Y. 570; People v. Koch, 250 App. Div. 623; People ex rel. Ansil v. Chief of Police of City of Troy, 268 App. Div. 336.) III. The evidence is insufficient to sustain a conviction of the individual appellants. (People v. Anderson, 210 App. Div. 59; People v. Pinnock, 207 Misc. 1097; People v. Gluck, 188 N. Y. 167; People v. Brainard, 192 App. Div. 816; Nye & Nissen v. United States, 336 U. S. 613; People v. Taylor, 192 N. Y. 398.)

      Charles H. Tenney, Corporation Counsel (Fred Is col And Seymour B. Quel of counsel), for respondent.
    Defendants were properly convicted since the evidence plainly established that they had violated the Sanitary Code by refilling the prescription despite the lack of a statement thereon that it might be refilled. There is no basis in the record for a finding that the doctor had issued any new prescription, either in writing or by telephone. (People v. Weeks, 172 App. Div. 117; People v. Shapiro, 6 A D 2d 271.)

      Emil Greenberg for the Pharmaceutical Society of the State of New York, amicus curies.

    I. Paragraph 3 of section 118c of the Sanitary Code of the City of New York is too indefinite to meet the standards of due process in that the word “ refill ” as used therein to describe the act intended to be regulated does not have a meaning sufficiently definite and clear to guide the persons subject to the regulation. (Connolly v. General Constr. Co., 269 U. S. 385.) II. Paragraph 3 does not fulfill its purpose, if “ refill ” is intended to mean any subsequent dispensing of the same barbiturate, and therefore is not a valid exercise of the police power. (People v. Van Fradenburgh, 81 App. Div. 259; Boxer v. Town of Harrison, 175 Misc. 249; Matter of Friedman v. Valentine, 177 Misc. 437, 266 App. Div. 561.)
   Desmond, J.

Section 118c of the Sanitary Code of the City of New York is in pertinent part (subds. 1, 3.) as follows:

“ § 118c. Dispensing of Barbiturates on Prescription .Only; Filling and Refilling Prescriptions.-
,“ 1. No barbiturate as defined in Section 118b shall be sold, of dispensed, or given away in The City of New York except by a pharmacist or druggist on an original written prescription as defined in paragraph 7 of Section 115, which prescription shall include the name and address of the practitioner, the name and address of the patient, and if prescribed for an animal, the species of such animal. Telephone prescriptions from practitioners legally authorized to prescribe barbiturates may be filled by a pharmacist or druggist and, in such cases, the practitioners must furnish to the pharmacist or druggist a written prescription within seventy-two hours. If the written prescription is not received by the pharmacist or druggist within such period, the pharmacist or druggist shall make a record showing the name and address of the physician, the name and address of the patient, the amount of barbiturate dispensed and the time and date of dispensing. Such record shall be kept on file by the pharmacist or druggist for a period of not less than two years and shall be exhibited to representatives of the department of health upon request.
# * #
‘ ‘ 3. The refilling of any prescription for a barbiturate as defined in Section 118b is prohibited unless such prescription includes a statement by the practitioner (1) That it may be refilled and (2) Specifying the minimum interval between fillings and the total number of refillings prescribed. No such prescription shall be refilled in any event later than three (3) months after the original issuance thereof.”

Defendant Caswell-Massey Co., Ltd., operates a pharmacy on Lexington Avenue in Manhattan. The individual defendants Milton Taylor and Ralph Taylor are officers of the corporation and active in the prescription-filling department of its business. All three defendants were cónvictéd and fined, after a trial before a Magistrate sitting as a Court of Special Sessions, on charges of violations of section 118c of the Sanitary Code of the City of New York (supra). The Appellate Division affirmed.

In substance, the corporation is accused of violating section 118c (supra) on nine different dates in 1955 by refilling (that is, filling without a new prescription) a July 25, 1955 prescription for a barbiturate. The original July, 1955 prescription did not contain, it is conceded, a statement by the prescribing physician that the prescription might be refilled (see subd. 3, supra). The complaint against defendant Milton Taylor charges that on eight of the nine 1955 dates just above referred to he was guilty of the same act as alleged against the corporation. The complaint against defendant Ralph Taylor makes the same charge against him, as of August 16, 1955. The meaning is that Milton Taylor was in charge of the prescription department and directed the issuance of the so-called refill on the dates of eight of the alleged violations. Ralph Taylor likewise is charged as of August 16, 1955 because he was running the prescription department and handled the transaction on that date. In each instance there was sold to a City Health Department investigator 10 capsules each containing a grain and a half of nembutal, a barbiturate, for the price of $1 for the 10. It is testified in the record without dispute that nembutal is a habit-forming substance prescribed for inducing sleep but that it is not dangerous to health in these quantities.

The substance of the trial testimony was that the Health Department employee, using an assumed name, got from a physician (who knew this was part of an investigation) the original prescription for 10 grains of nembutal. That original prescription contained no direction or authorization for refill but was refilled nine times at the pharmacy of defendant Caswell-Massey Co., Ltd.

The prosecution says that under the Sanitary Code (supra) each of those refills was illegal and a criminal violation of the code because the original prescription did not contain a direction for refilling. The defense was: first, that the Sanitary Code is so ambiguous or uncertain in meaning that it does not meet the standards for a criminal statute; second, that under any reasonable meaning of the code these refillings were not illegal since as sworn to by defendants there was in each instance a telephonic authorization by the prescribing physician or his office for the refill; and third, that since the first subdivision of section 118c (supra) specifically validates original telephone prescriptions without any stated necessity for a later written prescription and since it is the New York City custom as established by this record to make refills on telephone instructions, no guilty act of defendants was established. Put in another way, the submission of defendants is that, since any number of original prescriptions may validly be filled on telephone instructions without a writing, it is an unreasonable construction of this Sanitary Code and contrary to its practical construction in the trade to penalize a druggist or pharmacist for refilling on telephone order when the identical prescription if considered to be an original one can be authorized by telephone as could any number of subsequent identical original prescriptions.

The trial court did not pass on the disputed fact question as to whether defendants got telephone authorization from the physician’s office on the occasion of each refill. The court found it unnecessary to pass on that issue since it held that each of these refills was a violation of the statute because there was no writing authorizing it.

We hold that subdivision 3 of section 118c, read as it must be with subdivision 1, is not clear and explicit enough to meet the requirement that “ Statutes which create crimes must be definite in specifying conduct which is condemned or prohibited ’ ’ and that “ They must afford some comprehensible guide, rule or information as to what must be done and what must be avoided, to the end that the ordinary member of society may know how to comply with its requirements ” (People v. Grogan, 260 N. Y. 138, 145; People v. Vetrie, 309 N. Y. 401, 406; People v. Benc, 288 N. Y. 318; People v. Firth, 3 N Y 2d 472; United States v. Cardiff, 344 U. S. 174). A criminal statute must give “ unequivocal warning ” to citizens, of the rule which is to be obeyed, and, especially as to acts not mala per se, there must be a clear and positive expression of legislative intent to make them criminal (People v. Vetrie, supra, and cases cited therein, 309 N. Y. 405, 406).

If subdivision 1 were the whole of the law it would probably be clear enough. We will assume, also, that subdivision 3 read separately might provide an understandable rule. But when we read the two subdivisions together, as we must for the purpose of deciding when and how a barbiturate prescription may be filled more than once, we cannot work out a clear meaning. The first sentence of subdivision 1 requires an original written prescription. But the second sentence of subdivision 1 supplies a very large exception to that requirement of a writing in that it specifically permits the filling of telephoned barbiturate prescriptions. The end of that second sentence says that when such prescriptions are filled by telephone physicians must send the pharmacist a written prescription within 72. hours. However, that mandate is addressed not to the pharmacist but to the physician, as is established by the third sentence of subdivision 1 which says that if after filling a telephoned prescription the druggist does not get a written prescription within 72 hours the druggist must make a record of that occurrence and keep that record available for 2.years. Thus it is clear, on a reading of the whole of subdivision 1, that a druggist is not violating the law by taking a telephoned barbiturate prescription even if he does not get later written authorization therefor, provided he makes a written record thereof.

Now let us turn to subdivision 3 on which these defendants were convicted. That forbids the refilling of a barbiturate prescription unless the prescription includes a statement that it may be refilled and contains a specification of the minimum interval between fillings and the total number of refillings permitted. The statute adds a further proviso that there shall be no refilling more than 3 months after the issuance of the original prescription. Here is the point at which subdivisions 1 and 3, read together, become unworkable if not unintelligible. Subdivision 1 validates telephoned prescriptions never afterwards put into writing. Then subdivision 3 turns around and forbids the refilling of such a prescription (which may validly be oral) unless it contains written permission for refilling and particulars as to number and intervals of refillings. Having authorized oral prescriptions, the statute reverses itself and requires that to be refilled such prescriptions must contain certain written material. Such a statute could mean so many things to careful people that it does not meet the requirements of precision for a criminal law. And that is not all. Subdivision 1 plainly means that a druggist may, as many, times as he wishes, validly accept telephoned barbiturate prescriptions and this would.seem to be so even though the successive telephoned prescriptions were each for the same quantity of the same drug. Then, having made it legal for a druggist to take a series of separate telephoned barbiturate prescriptions, subdivision. 3 seems to say that if those later prescriptions are refills each of them is invalid unless the druggist has a writing. All this adds up to confusion only.

These defendants recorded every, filling.of a prescription in a book prepared for that purpose which has printed columns for date, number of prescription, name of physician, name of patient, type of medicine, etc., etc. Every prescription, original or refill, was given a consecutive number in the book. In one column there was inserted, in the case of a refill, the number of the original prescription refilled. Thus, in the case of a refill the book entry contains two numbers. Since telephoned prescriptions are valid, a druggist may treat a telephoned request from the doctor’s office for a product theretofore prescribed either as an original prescription or a refill and the only difference is that in the latter case he puts into his book, besides the new number, the original number also. All he has to do is to omit recording the original number, and the new-filling becomes a new prescription and valid although telephoned.

The judgments should be reversed, the fines remitted and the complaints dismissed.

Chief Judge Conway (dissenting).

On this appeal defendants ask this court to strike down as uncertain in meaning a clearly written statute designed by the Legislature to protect the public against the indiscriminate use of a drug which is habit forming.

On July 25,1955 a prescription for a habit forming barbiturate was issued by a Doctor Kayden to a Public Health Sanitarian of the Department of Health of the City of New York. The prescription contained no statement by the doctor that it might be refilled. Notwithstanding the absence of authorization to refill, the defendants refilled the prescription nine times. Two of the nine refillings were made later than three months after the original issuance of the prescription by the defendant Milton Taylor, the secretary and vice-president of the corporate defendant pharmacy, who is in charge of the drug dispensing department. On the second of those occasions, to wit, on November 23, 1955, the Sanitarian presented Taylor with a slip of paper containing the prescription number F-79037 — the number of the original prescription. The Sanitarian testified that, after she had waited a while, Milton Taylor “ came out and he told me that he put on a new number because the prescription runs out after three months.” Milton, at that time, executed a so-called “new prescription”, presumably in the name of Doctor Kayden, with the indorsement of a new prescription number, F-81495, putting on the date 11-23-55 and a new notation “OK to refill The original prescription of Doctor Kayden, as we have said, contained no statement authorizing a refilling of it. It was delivered personally to the pharmacy— not telephoned in. Doctor Kayden testified that, after he had issued the prescription to the Sanitarian on July 25th, he had issued no other prescription to her and had not authorized the refilling of the prescription; that he had never received a telephone call from Caswell-Massey or from anyone on its behalf requesting permission to refill the prescription; and that his nurse, Miss Doherty, was not authorized to act in such matters without prior consultation with him.

As a consequence of the foregoing, which was uncovered by the Sanitarian (who, we may fairly presume undertook the investigation of defendants because she had been given cause to suspect that defendants had been acting in violation of the provisions of the Sanitary Code of the City of New York dealing with the dispensation of barbiturates), defendants were charged with having violated subdivision 3 of section 118c of the Sanitary Code. That subdivision reads: “3. The refilling of any prescription for a barbiturate as defined in Section 118b is prohibited unless such prescription includes a statement by the practitioner (1) That it may be refilled and (2) Specifying the minimum interval between fillings and the total number of refillings prescribed. No such prescription shall be refilled in any event later than three (3) months after the original issuance thereof. ’ ’

There can be no doubt that the acts committed by the defendants, described above, were in plain violation of subdivision 3 of section 118c. The Magistrate sitting as a Court of Special Sessions so found and the Appellate Division unanimously affirmed. Defendants contend that the convictions may not stand because the statute is so unclear in its meaning that it does not afford citizens notice of what conduct is made criminal by it. It can hardly be denied that subdivision 3 (under which defendants were convicted), by itself, provides an understandable guide for pharmacists. That subdivision, in the most unambiguous of terms, proscribes the refilling of a prescription for a barbiturate unless (1) the prescription includes a statement that it may be refilled and (2) contains a specification of the minimum interval between fillings and the total number of refillings permitted. The statute imposes one further condition, namely, that in no event shall a barbiturate prescription be refilled later than three months after the original issuance thereof. Here, in the face of the unequivocal language of subdivision 3, the defendants refilled the original prescription nine times and two of those nine refillings were made after the expiration of the three-month period beyond which no refilling was permissible under the statute even if Doctor Kayden had included in the prescription the statement that it could be refilled — and that he had not done.

While the language of subdivision 3 is as lucid and understandable as language can be and while the defendants, by their very conduct, have demonstrated that they found it so, they now ask our court to find the wording of the subdivision vague and confusing when read with subdivision 1. We see no sound basis for such a holding.

A comparison of subdivision 1 with subdivision 3 reveals that a sharp distinction has been drawn between original barbiturate prescriptions and the refilling of such prescriptions. Under the terms of subdivision 1, a pharmacist may fill a telephone barbiturate prescription. Under the terms of subdivision 3, the pharmacist may refill only a written barbiturate prescription and only if such written prescription includes a statement by the practitioner that it may be refilled, and specifies the minimum interval between fillings and the total number of refillings prescribed. As the unanimous Appellate Division so aptly pointed out “ Anomalous as it [the distinction] may seem at first glance, there may be cogent reasons for a greater degree of stringency in the requirements for refilling a prescription than for dispensing an original one. There is nothing in the statute which, directly or inferentially, permits refilling by verbal order.” Indeed, it must be said that in no uncertain terms the statute explicitly prohibits refilling by verbal order. The wisdom of the distinction drawn by the Legislature between original prescriptions and the refilling of such prescriptions is not open to review in the courts.

The language of the statute governing the refilling of barbiturate prescriptions being plain, and the acts of defendants having been in violation thereof, these convictions must be affirmed. '

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

■ Judgments reversed, etc.


author: Chief Judge Conway.

text:
    In the Matter of the Claim of Harry Schechter, Appellant, against State Insurance Fund, Respondent. Workmen’s Compensation Board, Respondent.
    Argued May 12, 1959;
    decided July 8, 1959.

      Abraham Markhoff for appellant.
    I. Substantial evidence supported and justified the finding of the Workmen’s Compensation Board that the claimant’s disability was causally related to and the result.of an accident within the meaning of the. Workmen’s Compensation Law. (Matter of Owens v. McGovern, 309 N. Y. 449; Matter of Masse v. Robinson Co., 301 N. Y. 34; Matter of Furtardo v. American Export Airlines, 274 App. Div. 954, 298 N. Y. 933; Matter of Anderson v. New York State Dept. of Labor, 275 App. Div. 1010, 300 N. Y. 759; Hoage v. Royal Ind. Co., 90 F. 2d 387, 302 U. S. 736; Matter of Kehoe v. London Guar. & Acc. Ins. Co., 303 N. Y. 973; Matter of Riccobono v. Continental Cas. Co., 2 A D 2d 718, 2 N Y 2d 705; Matter of Sleator v. National City Bank, 285 App. Div. 393, 309 N. Y. 708; Matter of Borra v. Siwanoy Country Club, 280 App. Div. 906, 304 N. Y. 985; Matter of Altschuller v. Bressler, 289 N. Y. 463; Matter of Lesnik v. National Carloading Corp., 309 N. Y. 958; Matter of O’Rourke v. State Ins. Fund, 2 A D 2d 616.)

      Bernard F. Farley and Charles Tierney for State Insurance Fund, respondent.
    I. There was no accident within the meaning of the Workmen’s Compensation Law. (Matter of Learner v. Rump Bros., 241 N. Y. 153; Matter of Carpenter v. Sibley, Lindsay & Curr Co., 302 N. Y. 304; Matter of Lanphier v. Air Preheater Corp., 278 N. Y. 403; Matter of Wiltcher v. National Transp. Co., 308 N. Y. 674; Matter of Wachsstock v. Skyview Transp. Co., 279 App. Div. 831; Matter of Godsman v. Grumman Aircraft Eng. Corp., 295 N. Y. 708; Matter of Roberts v. Kennedy Valve Mfg. Co., 274 App. Div. 866; Matter of Kehoe v. London Guar. & Acc. Ins. Co., 278 App. Div. 731; Matter of Anderson v. New York State Dept. of Labor, 275 App. Div. 1010; Matter of Furtardo v. American Export Airlines, 274 App. Div. 954; Matter of Masse v. Robinson Co., 301 N. Y. 34; Matter of Lesnik v. National Carloading Corp., 285 App. Div. 649, 309 N. Y. 958.) II. Assuming that the work activities of the claimant constituted an accidental injury arising out of and during the course of the employment, there is no substantial evidence of causal relation. ' (Matter of Riehl v. Town of Amherst, 308 N. Y. 212; Matter of Kopec v. Buffalo Brake

      Beam-Acme Steel & Malleable Iron Works, 304 N. Y. 65; Matter of Burris v. Lewis, 2 N Y 2d 323.)
    No appearance for Workmen’s Compensation Board, respondent.
   Chief Judge Conway.

Two issues are presented here: (1) do the facts and circumstances warrant the finding made by the Workmen’s Compensation Board that the claimant sustained an accidental injury within the meaning of the Workmen’s Compensation Law when he suffered a heart attack, and (2) assuming such, is there sufficient medical evidence presented to sustain the finding of fact made by the board that the heart attack was causally related to his activities as a trial counsel? We have concluded that both questions must be answered in the affirmative and, therefore, that the order of the Appellate Division must be reversed and the decision and award of the Workmen’s Compensation Board be reinstated.

The claimant, Harry Schechter, is employed by the State Insurance Fund as a Senior Trial Attorney, in charge of all litigation. Normally he spent approximately 60 to 70% of his time in court as a trial counsellor. However, during the months of January and February, 1955 — a period of seven weeks—his workload increased to such an extent that he was compelled to spend 100% of his time in court. During that entire period he was in the office on but one day and then only for a few hours. It was during this period that claimant experienced pains in his chest which finally culminated in a heart attack on March 1,1955.

Schechter’s chest pains began on January 3,1955, immediately upon his leaving the house that morning and persisted on and off until the time of his incapacitation on March 1,1955. In the course of traveling to and from work claimant used the subways exclusively and was thereby required to descend and ascend stairs. In addition, he carried a brief case which varied in weight from 25 to 35 pounds and which caused him to experience pain across his chest every time he lifted and carried it.

On February 14, 1955 Schechter commenced the trial of the so-called Agosti case. On February 23d the trial ended with claimant making his summation to the jury, a summation which lasted approximately three fourths of an hour. During the course of Ms summation, Schechter began to perspire profusely and at the same time he experienced dizziness and severe pains across the top of his chest. At the completion of the summation, claimant was completely drenched in perspiration and was barely able to make his way back to Ms seat at the counsel table. Schechter waited until the jury returned with their verdict until approximately 10:00 p.m. that night. He then proceeded home with his heavy brief case in hand by subway and upon reaching his destination went immediately to bed and slept until the following morning. Throughout tMs entire period of time, including the journey home, claimant experienced extreme distress and pain. In the morning—Thursday, February 24, 1955 — Schechter left his home at approximately 11 or 12 o’clock, proceeded to the office and remained there but a few hours. He left the office after such a brief time because of the persistence of the pain. On February 25th claimant went to Supreme Court, Kings County, again carrying his heavy brief case weighing between 25 and 35 pounds. From there he went to his office but again did not remain long because of the pain he was experiencing. That evening he made an appointment for Sunday morning to see a doctor—he did not make an appointment for Friday night or Saturday because his doctor was an orthodox Jew who did not practice on those days. The pains persisted off and on Friday night and all day Saturday. His physician examined him and took an electrocardiogram on Sunday morning. The electrocardiogram proved normal. The doctor told him, however, to take a few weeks off and to go home and go to bed. Claimant remained home the remainder of Sunday and all day Monday. Then on Tuesday night, March 1, while sitting on his bed and bending over to untie Ms shoe, Schechter experienced terrifically sharp pains across Ms chest and a complete loss of breath. The doctor was called imiiiediately, oxygen was ordered and claimant was removed to the hospital under oxygen. He remained in the hospital for 43 or 44 days. On March 3d another electrocardiogram was taken and from that it was determined that Schechter had suffered a myocardial infarction.

The Workmen’s Compensation Board found that the claim came within the provisions of the Workmen’s Compensation Law and granted an award to Schechter. The board found as a fact that Schechter’s disability was the result of accidental. Injuries and arose out of and in the course of his employment. In addition the board held that the claimant’s activities beginning with January, 1955, when viewed in the light of the medical evidence, ‘1 constitute an accidental injury within the meaning of the law and that such injury was an aggravating and contributing factor in the coronary occlusion and myocardial infarction ” suffered by him on March 1, 1955.

The Appellate Division, however, unanimously reversed the decision of the board and dismissed the claim upon the ground that there was no accident within the legal definition of that word.

What constitutes an industrial accident is to be determined ‘ ‘ by the common-sense viewpoint of the average man. ’ ’ (Matter of Masse v. Robinson Co., 301 N.Y. 34, 37.) There is no longer any doubt that a coronary occlusion or thrombosis is compensable as an industrial accident provided it is the resultant of excessive strain in the performance of one’s work- and this is true even though there be a pre-existing pathology which also contributes to the injury (Matter of Brooks v. Elliott Bates, Inc., 295 N. Y. 710; Matter of Masse v. Robinson Co., supra, p. 37; Matter of Cooper v. Brunswick Cigar Co., 298 N.Y. 731). Moreover, the claimant may be subjected to unusual or. excessive strain in the course of his employment despite the fact-that the work performed by him which precipitates the heart attack is of the same general type as that in which he is regularly involved (Matter of Kehoe v. London Guar. & Acc. Ins. Co., 303 N.Y. 973; Matter of Borra v. Siwanoy Country Club, 280 App. Div. 906, motion for leave to appeal denied 304 N. Y: 985; Matter of Sleator v. National City Bank, 309 N.Y. 708). The phrase ‘ ‘ unusual or excessive strain ’ ’, as sometimes used in describing these cases, is not so limited in its- meaning' as to include only work of an entirely different character from that customarily done. Simply stated, so long as the conditions of performing the work are such that an exceptional strain is imposed- on the worker so great that his heart is affected and damaged thereby, the requirement of unusual or excessive strain is satisfied.

Here, we have the uncontradicted testimony of. the claimant that beginning in January, 1955 and for seven weeks thereafter his workload as trial counsel was increased by between 30 to 40% of what it normally was. In other words, his normal duties required him to he in court approximately 60 to 70% of the time, but during this period he was required to be in court 100% of the time. This increased court work, with its attendant additional emotional and physical stresses, certainly constitutes unusual strain and exertion in the course of Ms duties within the meaning of the cases cited above or so the board might reasonably find (see Matter of Kopec v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 304 N. Y. 65, 71). However, in determining whether or not that added stress and strain constitutes- an industrial accident witMn the meaning of the Workmen’s Compensation Law, it is necessary to establish that the stress of'the unusual exertion is causally related to- the coronary occlusion and myocardial infarction suffered by Schechter. To establish such relation the evidence presented by the medical experts must be resorted to and examined. In Matter of Owens v. McGovern (309 N. Y. 449) at pages 452 and 453, this principle has been set forth as follows: The question in those cases [workmen’s compensation heart cases] is usually as to whether the exertion and strain of the work caused the heart attack so as to permit a finding of industrial accident. It is obviously impossible, given the other facts, to make such a causality finding, or to refuse it, without medical opinion proof. As Larson says in his 1 Workmen’s Compensation Law ’ the basic problem is medical causality (Vol. 1, § 38.83). The nexus between the work strain and the heart failure cannot be assumed, any more than the trier of the facts can assume that there was no connection. Consequently, in every workmen’s compensation heart case we have ever seen there was opinion testimony of causation. Whether or not that opinion was directly controverted, it was for the trier of the facts to "say whether or not he adopted the conclusion of the expert who testified for'claimant.” (Emphasis added.)

■ Two doctors were called as expert medical witnesses at the hearing of the case.' The medical expert testifying on the claimant’s behalf stated in the main that while he could not shy defimtely that Schechter’s coronary attack was precipitated by Ms strenuous labors preceding it, he did not see how one could conceivably - rule it out as such cause.. On the other hand, the expert, testifying on behalf óf theJcáfrier, was somewhat more forceful in stating'that in Ms opimon the myocardial infarction sustained by claimant was due to an underlying pre-existing disease, of which there was evidence, and so was not at all causally related to the unusual strain of his work. If that were all the expert medical evidence present, we would, perhaps, agree that it falls short of that quantum needed to sustain a finding of causal relationship (see Matter of Lesnik v. National Carloading Corp., 309 N.Y. 958). However, it is not. There is in addition the report of the impartial heart expert designated by the board to examine Schechter and render an opinion on the issue of causation. It was his unqualified opinion that “ the myocardial infarction was directly related to the intense emotional and physical strain the patient had engaged in prior to the onset of the occlusion.” (Emphasis supplied.) In short, he reported that the heart attack suffered by Schechter on March 1, 1955 was directly related to the unusual exertion and strains undergone by him in. the seven weeks prior thereto, viz., the unusual exertion of the increased trial activity in his work as trial counsel. This combined medical evidence of the impartial expert and claimant’s own expert was sufficient to sustain a finding of fact by the board that the unusual exertion performed by claimant prior to his attack was a competent producing cause of the myocardial infarction. This is so even though there was present other expert medical evidence which conflicted with such a conclusion for our courts “cannot pass upon scientific questions when experts have expressed conflicting opinions.” (Matter of Altschuller v. Bressler, 289 N.Y. 463, 467; see, also, Matter of Sleator v. National City Bank, 309 N. Y. 708, supra; Matter of Riccobono v. Continental Cas. Co., 2 A D 2d 718, motion for leave to appeal denied 2 N Y 2d 705.) As we said in Matter of Carpenter v. Sibley, Lindsay & Curr Co. (302 N. Y. 304) at pages 306 and 307: “it was within the power of the Workmen’s Compensation Board to decide whether in point of fact the testimony of the claimant’s physician—notwithstanding some shortage of agreement within itself—nevertheless established a causal relationship between the claimant’s routine occupation and the harm that happened to her. (Workmen’s Compensation Law, § 20. See Williams v. Delaware, L. & W. R. R. Co., 155 N.Y. 158, 162-163; Cannon v. Fargo, 222 N.Y. 321, 325; Loewinthan v. Le Vine, 299 N. Y. 372, 377-378.) ” The evidence presented here was such that a reasonable mind might accept as adequate to support the conclusion reached by the board. That being so, it follows that the decision of the board must be sustained (Matter of Kopec v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 304 N.Y. 65, 71, supra; Workmen’s Compensation Law, § 20).

The order of the Appellate Division should be reversed and the decision and award of the Workmen’s Compensation Board reinstated.

Judges Desmond, Dye, Froessel and Burke concur with Chief Judge Conway; Judges Fuld and Van Voorhis dissent and vote to affirm upon the ground that the record reveals no accident as that term is used in the Workmen’s Compensation Law:

Order reversed and award of the Workmen’s Compensation Board reinstated, with costs in this court and in the Appellate Division.