text:
    The People of the State of New York, Respondent, v Maximo Cosme, Appellant.
    Argued October 15, 1979;
    decided November 20, 1979

      POINTS OF COUNSEL

      Hal B. Patterson for appellant.
    I. The search of appellant’s apartment was unlawful because he was present at the time and affirmatively objected even if the police had the valid requisite consent of a third party Meyrle Hennessey. (United States v Matlock, 415 US 164; Frazier v Cupp, 394 US 731; Schneckloth v Bustamonte, 412 US 218; United States v Robinson, 479 F2d 300; Lucero v Donovan, 354 F2d 16; People

      v Kemp, 59 AD2d 414.) II. The warrantless search of appellant’s apartment was illegal and cannot be sustained on the basis of probable cause and exigent circumstances. (People v White, 16 NY2d 270; Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410; People v Wirchansky, 41 NY2d 130; People v Martin, 48 AD2d 213; People v Sullivan, 37 AD2d 559; People v Hendricks, 25 NY2d 129; Draper v United States, 358 US 307; People v Hicks, 38 NY2d 90.)

      Robert M. Morgenthau, District Attorney (Donna Krone and Robert M. Pitler of counsel), for respondent.
    I. Meyrle Hennessey’s consent to a search of the apartment she shared with defendant was binding, despite the fact that defendant was present at the time of the search and may have protested. (United States v Matlock, 415 US 164; People v Jackson, 41 NY2d 146; People v Scull, 37 NY2d 833; People v Kemp, 59 AD2d 414; People v Wood, 31 NY2d 975; People v Carter, 30 NY2d 279; People v Kowalczyk, 20 NY2d 835.) II. Even assuming that there was no valid consent to search, the hearing court’s findings of probable cause and exigent circumstances were affirmed by the court below and supported by the record. An affirmance of those findings is called for. (People v Oden, 36 NY2d 382; People v Alexander, 37 NY2d 202; People v Rizzo, 40 NY2d 425; People v Vaccaro, 39 NY2d 468; Aguilar v Texas, 378 US 108; People v Hendricks, 25 NY2d 129; People v Brown, 40 NY2d 183; United States v Ventresca, 380 US 102; People v Hanlon, 36 NY2d 549; People v Hicks, 38 NY2d 90.)
   OPINION OF THE COURT

Gabrielli, J.

Defendant appeals from an order of the Appellate Division, First Department, which unanimously affirmed his conviction for criminal possession of a controlled substance in the third degree (Penal Law, § 220.16). His appeal raises a substantial question concerning the authority of police officers to search jointly occupied premises when both of the occupants are present and one consents to the search while the other explicitly refuses to consent.

The incident that forms the basis of this appeal was precipitated by a quarrel between defendant Cosme and his fiancée, Meyrle Hennessey, with whom he shared his apartment on at least a part-time basis. At about 1:00 a.m. on the morning of October 26, 1976, Hennessey, who had been drinking rather heavily, telephoned the police and reported that defendant was storing a gun and a large quantity of cocaine in the apartment. Although the police official who took the call initially stated that no action could be taken until a search warrant had been obtained, he eventually acceded to Hennessey’s demand for an immediate response and dispatched a patrol car to the address she gave.

When the police arrived at the apartment house at about 1:30 a.m., they found Hennessey waiting for them in the building’s outer vestibule clad only in a man’s pajama top, slippers and a pair of jeans. She told the officers that the contraband was hidden in the bedroom closet, which she and her fiancé shared, and drew a diagram of the apartment to indicate the closet’s precise location. In addition, she gave the officers the key to the apartment and told them how to use it without triggering the burglar alarm system. Hennessey then followed the officers up the stairs to the third-floor apartment, waiting on the landing behind them as they unlocked the door and let themselves in.

Immediately upon entering the apartment, the police officers saw defendant Cosme and a male companion, both of whom were standing in the kitchen. Their guns drawn, the officers ordered the two men to "freeze”. The men promptly surrendered, whereupon they were placed in handcuffs under protest and made to lie face down on the floor so that the police could conduct their search without interference. The officers then proceeded to the bedroom closet where the contraband was supposed to be cached. They systematically searched the closet and its contents until they found a gun and a quantity of cocaine hidden in a pillowcase on the floor.

Following his indictment for criminal possession of the gun and narcotics, defendant Cosme made a motion to suppress the evidence seized during the October 26 search on the ground that the police had acted without either probable cause or valid consent. After conducting a hearing, the trial court rejected defendant’s contentions and denied his suppression motion in an opinion which set forth the relevant factual determinations and conclusions of law. The trial court found, inter alia, that Hennessey had the authority to consent to the October 26 search by virtue of her unfettered access to and joint occupancy of defendant’s apartment. In addition, the court found that Hennessey’s capacity to consent had not been impaired by her consumption of alcohol earlier that evening and that she had, in fact, knowingly and voluntarily consented to the search. Finally, the court concluded on the basis of these findings that the search was lawful even if defendant Cosme’s protests upon being handcuffed could be construed as an attempt to deny the police officers the authority to conduct a warrantless search of his apartment.

After the denial of his suppression motion, defendant pleaded guilty to a reduced charge of criminal possession of a controlled substance in the third degree and a judgment of conviction was entered against him. The Appellate Division subsequently affirmed the conviction, without opinion.

On his appeal to this court, defendant contends that his protest at the time he was handcuffed was the equivalent of a refusal to consent to the search which was sufficient to override the consent given earlier by Hennessey. Thus, he argues, the police were without authority to conduct a search of his apartment and, accordingly, the fruits of their search should have been, suppressed. Although the trial court did not explicitly determine that defendant’s protestations upon being handcúffed constituted a refusal to consent, we deem it unnecessary to dwell upon this point since we conclude that any refusal on the part of defendant to consent to a search would have been ineffective in the face of Hennessey’s contrary expression of consent.

It is well settled that the police may lawfully conduct a warrantless search when they have obtained the voluntary consent of a party who possesses the requisite degree of authority and control over the premises or personal property in question (Schneckloth v Bustamonte, 412 US 218; Amos v United States, 255 US 313; People v Lane, 10 NY2d 347). Furthermore, it has consistently been held that where two or more individuals share a common right of access to or control of the property to be searched, any one of them has the authority to consent to a warrantless search in the absence of the others (United States v Matlock, 415 US 164; Frazier v Cupp, 394 US 731; People v Wood, 31 NY2d 975). Until the issue was presented in this case, however, we had not had occasion to consider whether the presence of a protesting co-occupant at the scene of the search invalidates the authority of the other occupants to consent to a search of the shared premises. After an examination of the relevant precedents, we conclude that it does not.

Our resolution of this question depends, in large measure, upon our long-standing view of the theoretical underpinnings of the third-party consent rule. In People v Carter (30 NY2d 279), we expressly rejected the notion adopted by some courts (e.g., Lucero v Donovan, 354 F2d 16) that a cotenant’s right to consent to a search of jointly occupied premises is predicated solely upon his status as agent for the other occupants. Under the agency approach, which was seemingly rejected in Schneckloth v Bustamonte (412 US 218, 245-246, supra), the "agent’s” implied authority to give binding consent to a search on behalf of a co-occupant is deemed to be "rescinded” when the co-occupant expresses a contrary intention not to permit the search (Lucero v Donovan, 354 F2d 16, supra). In Carter, we declined to follow this approach because we found it theoretically unacceptable to hold that one co-occupant may commit another to a binding waiver of an important constitutional right solely because the two share a common interest in the premises to be searched (accord Schneckloth v Bustamonte, 412 US 218, 245-246, supra). Nevertheless, we upheld the search in Carter because we found that the co-occupant possessed authority in her own right to permit a police entry " 'into premises where she lives and of which she had control’ ” (30 NY2d, at p 282, quoting Roberts v United States, 332 F2d 892, 896-897).

Our position on this point was further elaborated in People v Wood (31 NY2d 975, supra), in which we stated that an individual who does not possess exclusive authority and control over premises has no reasonable expectation of privacy with respect to those premises (id., at p 976; accord Ringel, Searches & Seizures, Arrests and Confessions [1972], § 232, p 292). A similar view has been expressed in recent Supreme Court decisions dealing with the question of third-party consents to searches (United States v Matlock, 415 US 164, supra; Frazier v Cupp, 394 US 731, supra). In United States v Matlock (415 US 164, 171, n 7, supra), the most recent Supreme Court pronouncement in this area, the court embraced an approach that is virtually indistinguishable from the position we took in Carter and Wood: "The authority which justifies the third-party consent * * * rests * * * on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched”.

Proceeding as we do from this theoretical background, we are led to the conclusion that an individual who possesses the requisite degree of control over specific premises is vested in his own right with the authority to permit an official inspection of such premises and that this authority is not circumscribed by any "reasonable expectation of privacy” belonging to co-occupants. Whether the principle is characterized as an "assumption of risk” or a relinquishment of the "expectation of privacy” guaranteed by the Fourth Amendment, the fact remains that where an individual shares with others common authority over premises or property, he has no right to prevent a search in the face of the knowing and voluntary consent of a co-occupant with equal authority. It then follows that such an individual has no constitutional ground for complaint, in the absence of some other taint arising in connection with the search, when evidence obtained in the search is sought to be used against him in a subsequent criminal proceeding.

Turning our attention to the case at hand, we conclude that the police acted properly when they entered defendant Cosme’s apartment and conducted a search of his bedroom closet pursuant to Hennessey’s request. As we are not empowered to review the factual determinations of the courts below absent a claim of evidentiary insufficiency or other error of law (NY Const, art VI, § 3, subd a; Cohen and Karger, Powers of the New York Court of Appeals, pp 742-745), we assume for purposes of this appeal that Hennessey was, as found by the trial court, a person with common authority over the premises searched by reason of her equal access to and use of both the apartment and the bedroom closet in which the contraband was found. We further assume, pursuant to the lower court’s findings, that Hennessey had the capacity to consent and did in fact knowingly and voluntarily give her consent for the October 26 search. Given these assumptions, it is apparent that any objections defendant may have voiced after the police entered his apartment would have been ineffective to override the authority to search conferred upon them by Hennessey’s request that they remove the contraband from the bedroom closet. Having given Hennessey an unrestricted right to share in the use and control of the bedroom closet, defendant cannot now complain because she used that right to authorize an official inspection of its contents.

Since we hold that Hennessey’s consent provided the police with sufficient authority to conduct a warrantless search of the bedroom closet in defendant’s apartment even though defendant was present and refused to give his consent, we need not reach the question whether the search could have been justified on alternate grounds, such as the existence of probable cause coupled with some form of exigency.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed.

      . Courts in several other jurisdictions have held that the police may not search jointly occupied premises where one of the occupants explicitly objects to the search (United States v Robinson, 479 F2d 300; Tompkins v Superior Ct., 59 Cal 2d 65; Silva v State, 344 So 2d 559 [Fla]; Lawton v State, 320 So 2d 463 [Fla]; Dorsey v State, 2 Md App 40; Hembree v State, Crim App Tenn, 1976, 546 SW2d 235 [Tenn]). While none of these courts relied exclusively on the "agency” approach to third-party consent searches, we find their alternative rationales equally unpersuasive.

      . We express no opinion as to the outcome in cases where several individuals share common authority over the premises as a whole, but one of their number has carved out a specific area for his own exclusive use. We similarly decline to comment here upon situations in which the consent is given by an individual who, as a practical matter, enjoys less than unrestricted access to and control over the premises to be searched.


source: Caselaw Access Project

author: Meyer, J.

license: Public Domain

text:
    In the Matter of Schweizer Aircraft Corporation, Respondent, v State Division of Human Rights et al., Appellants.
    Argued October 17, 1979;
    decided November 20, 1979

      POINTS OF COUNSEL

      Sara Toll East and Ann Thacher Anderson for State Division of Human Rights, appellant.
    I. There is warrant in the record and a reasonable basis in law for the division’s finding that Schweizer failed to meet its burden of proving undue economic hardship. (State Div. of Human Rights v Carnation Co., 42 NY2d 873; Matter of Guardian Capital Corp. v New York State Div. of Human Rights, 46 AD2d 832, 36 NY2d 806.) II. The court below erred in ignoring the division’s findings and in substituting its finding that Schweizer had met its burden of proof. (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; Matter of Mize v State Div. of Human Rights, 33 NY2d 53; State Div. of Human Rights v Carnation Co., 42 NY2d 873; Trans World Airlines v Hardison, 432 US 63; McDaniel v Essex Int., 571 F2d 338; Redmond v GAF Corp., 574 F2d 897; Anderson v General Dynamics Convair Aerospace Div., 589 F2d 397; Burns v Southern Pacific Transp. Co., 589 F2d 403.) III. The directives in the division’s order are not arbitrary, capricious or an abuse of discretion. (Franks v Bowman Transp. Co., 424 US 747; Matter of Mize v State Div. of Human Rights, 33 NY2d 53; Matter of Maloff v City Comm. on Human Rights [Schriber], 46 NY2d 902.)

      James Spitz, Jr., and A. Terry Van Houten for James B. Amrhein, appellant.
    I. The court below exceeded its scope of review when it annulled the order of the appeal board and dismissed the complaint. (City of Schenectady v State Div. of Human Rights, 37 NY2d 421; Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Div. of Human Rights, 35 NY2d 371.) II. Subdivision 10 of section 296 of the Executive Law requires an employer to employ an individual and permit that individual to observe his sabbath unless to do so would impose an undue economic hardship upon the employer. (State Div. of Human Rights v Carnation Co., 42 NY2d 873.) III. The Federal court decisions interpreting title 7 of the Civil Rights Act of 1964 are not dispositive of this case. (Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Div. of Human Rights, 35 NY2d 371; Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84; Trans World Airlines v Hardison, 432 US 62.)

      James L. Burke for respondent.
    I. Any accommodation would require the deliberate violation of the contractual rights of other employees. (Olten v Baltimore & O. R. R. Co., 205 F2d 58; Griggs v Duke Power Co., 401 US 424; General Elec. Co. v Gilbert, 429 US 125; Matter of Page Airways of Albany v Division of Human Rights, 39 NY2d 877; Matter of Eastern Greyhound Lines Div. of Greyhound Lines v New York State Div. of Human Rights, 27 NY2d 279; State Div. of Human Relations v Carnation Co., 53 AD2d 1053, 42 NY2d 873.) II. The reversal of the court below was within its authority. (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176.)
   OPINION OF THE COURT

Meyer, J.

This appeal requires that we interpret section 296 (subd 10, par [c]) of the Executive Law which proscribes discrimination in employment because of sabbath observance, but excepts from its proscription an employer other than the State, a political subdivision or a school district "where the uniform application of terms and conditions of attendance to employees is essential to prevent undue economic hardship to the employer”. The subdivision puts the burden of proof on the employer in any proceeding in which applicability of its proscription is in issue. We hold that the employer failed to sustain its burden under the circumstances of this case because it made its determination not to employ the complainant solely on the basis of the judgment of its own officers and employees that accommodation of his sabbath problem was not feasible and did not make a good faith effort, through inquiry addressed to other employees or negotiation with the union, to seek accommodation. We therefore reverse the order of the Appellate Division and reinstate the determination of the Human Rights Appeal Board.

The evidence before the hearing officer establishes the following as undisputed facts: James Amrhein, a Seventh Day Adventist and a machinist, applied to Schweizer Aircraft Corporation for a position as a machine operator. The Schweizer plant operated on a two-shift basis, the day shift being from 7:45 a.m. to 4:00 p.m. and the night shift from 4:30 p.m. to 1:00 a.m. The regular work week for machine operators was Monday through Friday. After an interview with the machine shop foreman and the personnel manager, Amrhein was offered a job on the night shift, but when he revealed that as a sabbath observing Seventh Day Adventist he could not work from sundown Friday until sundown Saturday he was not hired. The decision not to employ Amrhein was based upon the facts that there was no day shift vacancy, and that low seniority workers were assigned to the night shift, and the conclusion of the foreman and the personnel manager that to obtain a voluntary transfer of another employee from the day shift on Friday to the night shift on Friday was unworkable. That decision was made by the two interviewers without any attempt then or later to contact any individual employee or to ascertain whether the union would go along with an accommodation of Amrhein’s sabbath problem.

The State Division of Human Rights found after a hearing that Schweizer had made no effort to obtain the voluntary transfer of an employee working on the Friday day shift to the night shift or to obtain union approval of such a transfer, nor did it attempt in any way to accommodate Amrhein’s problem. The appeal board, finding the commissioner’s decision and order to be supported by substantial evidence affirmed, but the Appellate Division on Schweizer’s petition for review under section 298 of the Executive Law annulled the order and dismissed the complaint. It found that "a special effort to accommodate the complainant would not only have been in violation of the petitioner’s collective bargaining agreement with its union but, further, that such violation would have resulted in significant management-labor problems” and held that the employer had, therefore, met its burden of proof of "undue economic hardship” within the meaning of section 296 (subd 10, par [c]) of the Executive Law.

Since section 298 of the Executive Law makes the findings of fact on which the division’s order is based "conclusive if supported by sufficient evidence on the record considered as a whole”, the Appellate Division’s finding and conclusion can stand only if the board had no right to consider Schweizer’s failure to seek an accommodation or the division’s affirmed finding is not supported by substantial evidence.

As above noted section 296 (subd 10, par [c]) does not apply "where the uniform application of terms and conditions of attendance to employees is essential to prevent undue economic hardship to the employer”. Since essentiality is the criterion and a voluntary exchange of shifts on one day would obviate the problem, the board did not exceed its powers in considering Schweizer’s failure to make any effort whatsoever to accommodate. That is not to say that someone would necessarily have been found who was willing to make a transfer or even that in every case inquiry need be made, but only that an employer is obligated, unless clearly prohibited from doing so by nondiscriminatory provisions of its collective bargaining agreement, or unless it has unsuccessfully made inquiry so recently that it is clear that further inquiry would be fruitless, to make a good faith effort before denying employment to a sabbath observer. Here, there was no contact with the union on the issue at all and, contrary to the Appellate Division’s finding, section 7 of article X of the union agreement, which permits transfers with the consent of an employee and interdepartmental transfers without regard to seniority, made it possible without violation of that agreement to accommodate Amrhein.

Nor is there any question that the division’s finding was supported by substantial evidence. The testimony of Schweizer’s vice-president was that Friday night was a difficult night to effectuate a shift exchange because most people who worked day shift look to Friday night as recreational. He acknowledged that no attempt was made to discuss the matter with the union and in that was confirmed by the union representative and the machine shop foreman. The after the fact testimony of the union representative concerning what the consequences might have been had an inquiry been made is abstract opinion, not fact. Whether the eventuality would turn out as he prophesied would depend in part on who, if anyone, was prepared to make such a one-day shift change. Absent any accommodation effort by the employer, the testimony of the union representative was insufficient to sustain the employer’s burden of proof and clearly did not affect the substantiality of the evidence upon which the division’s finding was based.

Accordingly, the order of the Appellate Division should be reversed and the determination of the State Human Rights Appeal Board should be reinstated, with costs.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order reversed, etc.

      . For example, if inquiry had been made in Amrhein’s case and proved fruitless and on the following day another Seventh Day Adventist had applied for the same position, there being no interim change in staff, inquiry would not be required as to the second applicant.

      . Some of the testimony related to the possibility of Amrhein working four instead of five days, an issue we do not consider in view of Amrhein’s concession that he would not have accepted less than five-day employment. Clear from the testimony, though, is the fact that there was no discussion about Amrhein with the union at all. The decision that he was not to be employed was made at his initial interview without any contact with the union.


author: Fuchsberg, J.

text:
    Congregation Kollel Horabonim, Inc., Respondent, v Clara M. Williams, as the Assessor of the Town of Ramapo, Appellant.
    Argued September 13, 1979;
    decided October 18, 1979

      POINTS OF COUNSEL

      Arnold Becker, Kenneth H. Resnik and Thomas W. Faist for appellant.
    I. A parsonage is simply the officiating clergyman’s residence related to the congregation’s place of worship. II. Historically the majority rule was to afford no exemption from real property taxes to a parsonage; if the parsonage exemption (Real Property Tax Law, § 462) was meant to be a per se, self-executing statute, it would have logically been included in the "used exclusively for religious purposes” exemption statute (Real Property Tax Law, § 421, subd 1, par [a]). III. Sister State Constitutions and statutes are of varied construction and import and cases reaching different conclusions are not necessarily conflicting. IV. Construction of the parsonage exemption in section 462 of the Real Property Tax Law is not so clearly worded as to be self-executing: the words "In addition to” are not surplusage yet are prone to various interpretations. (Direen Operating Corp. v State Tax Comm., 46 AD2d 191.) V. Legislative intent underlying exemption from real property taxation is that the exemption statute be strictly construed against petitioner seeking exemption that petitioner carries the burden of proof, and .that any ambiguities or uncertainties are resolved in favor of the taxing authority. (People ex rel. Mizpah Lodge, No. 518 of I. O. O. F. v Burke, 228 NY 245; Matter of Great Neck Section, Nat. Council of Jewish Women v Board of Assessors, County of Nassau, 21 Misc 2d 142; Matter of Kennedy, 240 App Div 20, 264 NY 691; Crusade for Christ v Town of New Lebanon, 50 Misc 2d 774, 36 AD2d 247, 31 NY2d 765; People ex rel. Young Men's Assn. for Mut. Improvement in City of Albany v Sayles, 32 App Div 197, 157 NY 677; Matter of Schwartzman [Miller], 262 App Div 635, 288 NY 568; Pinelawn Cemetery v Cesare, 90 Misc 2d 736; People ex rel. Unity Cong. Soc. of City of N. Y. v Mills, 189 Misc 774; People ex rel. Andrews v Cameron, 140 App Div 76, 200 NY 585; Matter of Community-General Hosp. of Greater Syracuse v Town of Onondaga, 80 Misc 2d 96.) VI. A parsonage is not real property "used exclusively for religious purposes” and thus derives no constitutional protection. (Matter of Association of Bar of City of N. Y. v Lewisohn, 34 NY2d 143; People ex rel. Society of Free Church of St. Mary the Virgin v Feitner, 168 NY 494; Matter of Mandelcorn v Bruckman, 266 App Div 908, 292 NY 543; Interstate Lien Corp. v St. Paul's African M. E. Zion Church of Buffalo, 275 App Div 993.) VII. The parsonage tax exemption (Real Property Tax Law, § 462), is not so precise as to obviate its interpretation and consequently its construction provided room for abuse. (Matter of Las Aguas, 21 Misc 2d 937; Matter of Religious Soc. of Families v Assessor of Town of Carroll, 73 Misc 2d 923; Matter of Basilio Scientiñc Spiritist Cult Assn., 9 Misc 2d 389; Kupperman v Congregation Nusach Sfard of The Bronx, 39 Misc 2d 107; Walker Mem. Baptist Church v Saunders, 285 NY 462; Fiske v Beatty, 206 App Div 349, 238 NY 598; Westminster Presbyt. Church of West Twenty-Third St. v Trustees of Presbytery of N. Y., 211 NY 312; Ravenal v Ravenal, 72 Misc 2d 100.)

      Mark Landesman for respondent.
    I. It is difficult to imagine that the Legislature intended to grant tax exemptions to only those parsonages owned by religious entities which also own the parcel at which they conduct their religious services and worship but deny such exemption to religious entities which lease their houses of worship. (Syracuse Center of Jehovah's Witnesses v City of Syracuse, 163 Misc 535; Direen Operating Corp. v State Tax Comm., 46 AD2d 191; Kinkele v Wilson, 151 NY 269; Matter of Mulligan, 4 Misc 361; City of New York v Carolla, 48 Misc 2d 140; Abood v Hospital Ambulance Serv.,
      30 NY2d 295; People ex rel. Society of Free Church of St. Mary the Virgin v Feitner, 168 NY 494; Walz v Tax Comm., 397 US 664.) II. Serious constitutional questions would arise if parsonage exemption would be granted to only some religious groups but denied to others merely because of rental rather than ownership of other real property at which they conduct their services. (Le Drugstore Etats Unis v New York State Bd. of Pharmacy, 33 NY2d 298; People v Ryan, 274 NY 149; Matter of New York Post Corp. v Leibowitz, 2 NY2d 677; Matter of Capone v Weaver, 6 NY2d 307; Matter of Martinez v Ficano, 28 AD2d 215; Jaffe Plumbing & Heating Co. v Brooklyn Union Gas Co., 51 Misc 2d 1083, 29 AD2d 1052; Gross v West New Brighton Bank, 181 Misc 1, 267 App Div 870; Matter of Merchants Refrig. Co. v Taylor, 275 NY 113; Matter of City of New York, 190 NY 350.)

      Robert L. Beebe and Stephen J. Harrison for State Board of Equalization and Assessment, amicus curiae.

    I. The exemption accorded parsonages by section 462 of the Real Property Tax Law is connected to and contingent upon the eligibility of the owning religious corporation to receive an exemption pursuant to section 420 of such law. (People ex rel. Hutchinson v Collison, 22 Abb NC 52.) II. Section 462 represented an expansion of an exemption, but that expansion was subject to definite limitation. (People ex rel. Mizpah Lodge, No. 518 of I. O. O. F. v Burke, 228 NY 245; Matter of City of Lackawanna v State Bd. of Equalization & Assessment of State of N. Y., 16 NY2d 222; Association of Bar of City of N. Y. v Lewisohn, 34 NY2d 143; Matter of State Bd. of Equalization & Assessment v Kerwick, 92 Misc 2d 547.) III. The concerns of the court below are met by existing law.

      Dennis Rapps and Aaron C. Kinderlehrer for National Jewish Commission on Law and Public Affairs, amicus curiae.

    I. The purpose of property tax exemption is to spare religious corporations. (Walz v Tax Comm., 397 US 664.) II. The term "In addition” is synonymous with "also” or "besides” rather than contingent upon extrinsic characteristics. (Matter of Daggett, 2 Connoly 230; Matter of Mulligan, 4 Misc 361; City of New York v Carolla, 48 Misc 2d 140.) III. A statutory classification must be reasonable and bear a relationship to the object of the statute. IV. Respondent conducts a research center of Talmudic law and codes and grants fellowships to full-time scholars who devote their activities to resolving intricate questions of religious law and practice.
   OPINION OF THE COURT

Fuchsberg, J.

The sole issue in the case is whether section 462 of the Real Property Tax Law is to be construed as exempting the residence of a bona fide clergyman from local property taxes when the religious organization that he leads does not own real property used exclusively for religious purposes.

The statute reads as follows: "In addition to the exemption provided in section four hundred twenty of this chapter [since renumbered as section 421, subd 1, par (a)], property owned by a religious corporation while actually used by the officiating clergymen thereof for residential purposes shall be exempt from taxation”. Section 421 (subd 1, par [a]) exempts real property owned and used exclusively for religious purposes by an organization which itself is engaged exclusively in religious activities.

It is unquestioned that the petitioning congregation is a religious corporation entirely devoted to such purposes. It conducts daily religious services and sponsors advanced studies in Talmudic law. Since its establishment in 1973, it always has carried on its spiritual and educational activities in leased or borrowed buildings at various sites within the Town of Ramapo. The only property to which it holds title is a single-family house used as a residence for the congregation’s rabbi and his household. His quarters are also used as his rabbinical office and study.

Appellant tax assessor ruled that the rabbi’s residence was not exempt from real property taxes. The congregation thereupon commenced this proceeding to review that determination, only to have Special Term dismiss it on the ground that the prefatory "In addition to” language in the statute indicates that the entitlement to an exemption for an officiating clergyman’s residence embraced by section 462 is conditioned upon the religious organization having also qualified for an exemption by reason of ownership of property covered by section 421 (subd 1, par [a]). On review, however, a closely divided Appellate Division panel reversed, the majority holding that the congregation was entitled to the benefit of section 462 notwithstanding the fact that its synagogue is not housed in a building owned by the corporation. For the reasons that follow, we now uphold its determination.

The history of section 462 of the Real Property Tax Law lights the way for our analysis. Though that section itself is of comparatively recent vintage, the practice of exempting church property from taxation dates to at least early biblical days (e.g., Genesis 47:26; Ezra 7:24), after which it blossomed into a tradition almost universally followed throughout western civilization. When, not unexpectedly, it was transplanted to this continent, its strength was such that it continued to be followed with full force even after the adoption of the American Constitution’s provisions for separation of church from State. Indeed, without gainsaying that the exemption, given by the State as a matter of grace rather than right, rests somewhat uneasily between the opposing poles of the "nonestablishment” and "free exercise” clauses of the First Amendment (compare Walz v Tax Comm., 397 US 664, 668-672, with id., at pp 700-716 [Douglas, J., dissenting]; see, also, Tribe, American Constitutional Law, § 14-9, p 846), every jurisdiction in the United States today allows it as to real property. (See, generally, Pfeifer, Church, State & Freedom, pp 183-185.)

Most States exempt clergymen’s residences as well. In New York, this phase extends back to 1892, when chapter 565 of the Laws of that year was enacted. Its grant of an exemption was for a "dwelling-house owned by any religious corporation and the lands upon which the same stands, while and during only the time actually used by the officiating clergyman of such religious corporation”. Significantly, the "In addition to” phrase which introduces the present form of the statute was completely absent. Rather, the "dwelling-house” exemption was self-standing and unqualified.

Furthermore, the words "In addition to”, on which respondent places such heavy emphasis and on which we therefore focus with some particularity, in fact did not make an appearance until four years later when New York’s tax statutes were codified, and then only, after reiterating the language of the uncodified statute, in a concluding sentence that read, "Such exemption shall be in addition to that provided by [the predecessor of today’s § 421, subd 1, par (a)].” That sentence could not have been intended to serve other than a purely conjunctive purpose since the 1896 report of the Commissioners on Statutory Revision makes clear that no substantive change in the law was intended by the codifiers (Report of the Commissioners, at p 19; see, also, McKinney’s Cons Laws of NY, Statutes, Book 1, § 422). Thus, this is not a case where there is no apparent guide to the subjective intention of the legislators (cf. Messina v Lufthansa German Airlines, 47 NY2d 111, 115).

True, when the residence statute was later amended, first to increase a prior $2,000 exemption limit to $3,000 (L 1944, ch 529) and then to extend it to the entire value of the clergyman’s residence (L 1959, ch 733), while the sentence as such was deleted, the words "In addition to” were transposed to the beginning of the statute. But, the mere contraction or carrying forward of vestigial language which, when long ago adopted, was not central to the statutory purpose is too common an occurrence in legislative drafting for us, without more, to attach special meaning to that fact, and most certainly not when it would undercut so established a practice as the one the statutory scheme had theretofore carried out here.

Moreover, by no means do the statutory annals recited above suggest any legislative purpose to distinguish between a clergyman’s residence owned by a religious institution which leases its house of worship and one owned by a group with sufficient resources to purchase its sanctuary outright. To say the least, given prevailing community values and the proverbial financial straits in which many a religious organization characteristically finds itself (see, generally, Whitman & Trimble, Churches and Church Membership in the United States [1956]), the creation of such a difference in treatment could hardly have taken place without legislative turmoil, of which not the slightest hint can here be found. In sum, the disputed phrase appears to have been included for no other purpose than to call attention to the parallel provisions in the two statutes; nothing in the wording, read with the meaning ordinarily assigned such terms, suggests any dependence of one statute on the other.

Finally, the assessor’s contention that section 462 contemplates a "parsonage exemption” and therefore must be construed in accordance with the historical definition of "parsonage” or "manse”, while perhaps interesting, is hardly convincing. In support of this point, a definition of "parsonage” as lands appurtenant to an estate on which a church stands is urged upon us. But the authority cited for this proposition (Black’s Law Dictionary [4th ed], pp 819 [defining "glebe”], 1116, 1273-1274) fails to assert that this connection was a necessary element of a parsonage. In any event, and most pointedly, the statute does not provide the opportunity for such semantic niceties since it refers not to a "parsonage”, but, plainly and simply, to "property * * * used by * * * officiating clergymen * * * for residential purposes”.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler and Meyer concur with Judge Fuchsberg; Judge Jasen dissents and votes to reverse in the following memorandum: I would reverse the order of the Appellate Division and reinstate the judgment at Special Term, sustaining the appellant’s determination denying tax exemption, as a parsonage, to respondent’s residential property, for the reasons stated in the dissenting opinion of Mr. Justice Joseph F. Hawkins at the Appellate Division.

Order affirmed, with costs.

       Studies of church finances indicate that most carry forward little or no surplus from one fiscal period to the next, that even today the weekly donations of church members is their largest source of funds, and that endowments play a comparatively small role in church finances (Johnson, Picard & Quinn, Churches and Church Membership in the United States [1971]).


author:
Meyer, J. Chief Judge Cooke
      Fuchsberg, J.

text:
    Theresa C. Prink, as Administratrix of the Estate of Robert V. Prink, Deceased, Appellant, v Rockefeller Center, Inc., et al., Respondents.
    Argued September 6, 1979;
    decided November 15, 1979

      POINTS OF COUNSEL

      Arthur B. Sheehan for appellant.
    I. The court below erred in holding that since plaintiff has commenced an action seeking damages for the pecuniary injuries resulting from the death of plaintiff’s intestate, that the spousal privilege provided by CPLR 4502 (subd [b]), when considered with the disclosure provisions provided by CPLR 3121, must yield and plaintiff must testify further and answer questions concerning conversations had between plaintiff and plaintiff’s intestate pertaining to decedent’s consultations with a psychiatrist. (Merlin v Aetna Life Ins. Co., 180 F Supp 90.) II. Plaintiff’s postmortem conversation with decedent’s psychiatrist did not effect a waiver of the physician-patient privilege against disclosure. (Matter of A & M, 61 AD2d 426; Denaro v Prudential Ins. Co. of Amer., 154 App Div 840.) III. The bringing of the within action for wrongful death did not place in issue the mental and physical condition of plaintiff’s intestate by reason of defendants’ pleading the affirmative defense of self-destruction. (Koump v Smith, 25 NY2d 287; Freeman v Corbin Ave. Bus Co., 60 AD2d 824; Eder v Cashin, 281 App Div 456; Constantine v Diello, 24 AD2d 821.) IV. No waiver of the privilege against disclosure of confidential information having taken place in this wrongful death action, a determination of the factors necessary to the consideration of what is "fair and just compensation” is a decision to be made by the trial court. (Mercado v City of New York, 46 Misc 2d 358.) V. The moving papers of defendant-respondent Van Summern & Weigold, Inc., failed to comply with CPLR 2215 and should be disregarded in their entirety.

      Richard Bakalor for Rockefeller Center, Inc., respondent.
    I. Plaintiff by bringing the within action for wrongful death has placed into controversy the mental and physical condition of the decedent. (Kraus v Ford Motor Co., 55 AD2d 851, 42 NY2d 1093; Rothman v St. Barnabas Hosp. for Chronic Diseases, 20 AD2d 531; Mercado v City of New York, 46 Misc 2d 358; Weiner v Arrowbrook Gardens Dev. Corp., 18 AD2d 815; Matter of Beeler v Hildan Crown Container Corp., 26 AD2d 163; Koump v Smith, 25 NY2d 287; Freeman v Corbin Ave. Bus Co., 60 AD2d 824; Eder v Cashin, 281 App Div 456.) II. Since plaintiff by bringing the within action for wrongful death has placed into controversy the mental health of the decedent, plaintiff has waived the physician-patient privilege pertaining to same. (Sito v Neumann, 92 Misc 2d 97; Constantine v Diello, 24 AD2d 821.) III. Since testimony of what decedent’s psychiatrist stated to plaintiff is being sought from plaintiff, rather than from the psychiatrist, at the examination before trial, there is, in any event, no physician-patient privilege to be properly claimed. (Denaro v Prudential Ins. Co. of Amer., 154 App Div 840.) IV. Since plaintiff by bringing the within action for wrongful death has placed into controversy the mental health of the decedent, plaintiff has waived the husband-wife privilege pertaining to same. (Merlin v Aetna Life Ins. Co., 180 F Supp 90.)

      Richard T. Andrias and Andrew P. Davis for Van Summern & Weigold Planning Associates, Inc., respondent.
    I. By bringing the within action for wrongful death, plaintiff has placed into controversy the mental and physicial condition of decedent. (Kraus v Ford Motor Co., 55 AD2d 851; Rothman v St. Barnabas Hosp. for Chronic Diseases, 20 AD2d 531; Feldman v Allegheny Airlines, 382 F Supp 1271, 524 F2d 384; Merchant’s Nat. Bank & Trust Co. of Fargo v United States, 272 F Supp 409; Freeman v Corbin Ave. Bus Co., 60 AD2d 824; Constantine v Diello, 24 AD2d 821; Weiner v Arrowbrook Gardens Dev. Corp., 18 AD2d 815; Matter of Beeler v Hildan Crown

      Container Corp., 26 AD2d 163.) II. By bringing the within action for wrongful death, plaintiff has waived any privilege with respect to decedent’s medical condition. (Koump v Smith, 25 NY2d 287; Walsh v Parkchester Gen. Hosp., 33 AD2d 540.) III. Respondent Van Summern’s cross motion was served timely within the three-day period required by CPLR 2215.
   OPINION OF THE COURT

Meyer, J.

The question presented by this appeal is whether evidentiary privileges prevent disclosure in a wrongful death action concerning the mental condition of the decedent whose unwitnessed death occurred under circumstances consistent with either negligence of the defendant or suicide. We hold that since decedent himself could not have prevented disclosure, his personal representative may not do so in an action brought under EPTL 5-4.1.

Plaintiff is the administratrix of the estate of her husband, Robert Prink, who was an associate of a law firm whose offices were at 30 Rockefeller Plaza in New York City. On March 1, 1976, he was found dead on the sixth floor setback of the building. The window of the 36th floor office Mr. Prink had occupied was open. There were no eyewitnesses, but the deputy chief medical examiner noted on Mr. Prink’s death certificate that Dr. Thomas Doyle, Mr. Prink’s psychiatrist, had reported to him that Mr. Prink had been acutely tense and depressed.

Thereafter plaintiff commenced the present action against defendants, the owners and architects respectively of 30 Rockefeller Center, claiming that negligence in the design and installation of the window alcove desk at which decedent worked and in the maintenance of the window required that he kneel on the desk in order to open the window which was jammed, and that he lost his balance and fell when he attempted to do so. During the examination of plaintiff before trial she admitted that her husband had told her sometime before his death that he was seeing Dr. Doyle, a psychiatrist, but refused on the basis of the spousal privilege to disclose what her husband had said about why he was seeing Dr. Doyle. She also admitted that after her husband’s death she had spoken with Dr. Doyle, but refused to disclose the content of the conversation, claiming privilege. On defendants’ motion for an order compelling plaintiff to testify concerning the content of her conversations with her husband and Dr. Doyle, Special Term ordered the questions answered. The Appellate Division affirmed, but certified to us the question "Was the order of the Supreme Court, as affirmed by this Court, properly made?” We answer the certified question in the affirmative and, therefore, affirm the Appellate Division’s order.

The initial inquiry is whether privilege ever attached. The conversation between Mr. and Mrs. Prink occurred during marriage and was of a nature that it would not have been made but for the confidence induced by the marital relationship. It would, therefore, be within the protection of CPLR 4502 (subd [b]). Less certain is whether Dr. Doyle’s conversation with Mrs. Prink after her husband’s death is privileged for Mrs. Prink did not consult Dr. Doyle as a patient. Mr. Prink did, however, and Dr. Doyle’s information concerning him was, therefore, "acquired in attending a patient in a professional capacity” within the meaning of CPLR 4504 (subd [a]) and for purposes of the present inquiry at least may be presumed to have been "necessary to enable him to act in that capacity” as required by that provision.

Neither the spousal (see Southwick v Southwick, 49 NY 510, 518; Richardson, Evidence [10th ed — Prince], § 455) nor the physician-patient privilege (CPLR 4504, subd [cj; Davis v Supreme Lodge, Knights of Honor, 165 NY 159; 8 Wigmore, Evidence [McNaughton rev], § 2341) is terminated by death alone. Both privileges, therefore, apply unless waived in some manner. To be borne in mind in deciding whether there has been a waiver is that the conjugal privilege belongs not to the witness but to the spouse against whom the testimony is offered (People v McCormack, 278 App Div 191, 194, affd 303 NY 782; see People v Melski, 10 NY2d 78, 80, n 1; Richardson, op. cit, § 453) and that the physician-patient privilege belongs to the patient (CPLR 4504, subd [a]; Richardson, Evidence, § 434). From the latter fact it follows that Dr. Doyle’s voluntary disclosures to the chief medical examiner and to Mrs. Prink after her husband’s death, proper though they undoubtedly were as a matter of professional ethics (see Lanza v New York State Joint Legislative Comm., 3 NY2d 92, 97; 45 NY Jur 371, Physicians & Surgeons, § 119), cannot constitute a waiver making an otherwise privileged statement admissible (see Matter of City Council of City of N. Y. v Goldwater, 284 NY 296; Davis v Supreme Lodge, Knights of Honor, 165 NY 159, supra; People v Harris, 39 Misc 2d 193; Richardson, op. cit., §§ 440, 452; 8 Wigmore, op. cit., § 2381). To hold that a recipient of confidential information by his sole fiat may destroy the privilege would be directly contrary to the salutary purpose for which the privilege was adopted.

There is, however, another basis upon which we hold not only the doctor-patient but also the spousal privilege waived. The instant action is brought pursuant to EPTL 5-4.1, which authorizes an action for wrongful death only "for a wrongful act, neglect or default which caused the decedent’s death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued” (emphasis supplied). Thus to succeed in this action, which is wholly statutory in nature, plaintiff must establish that it could have been maintained by decedent had he survived (Emery v Rochester Tel. Corp., 271 NY 306 [not maintainable where there was no direct interference with decedent’s person]; Barnhart v American Concrete Steel Co., 227 NY 531 [not maintainable when barred by release in contract of employment]; Kelliher v New York City & Hudson Riv. R. R. Co., 212 NY 207 [not maintainable where Statute of Limitations had run during decedent’s lifetime]) and that defendants’ wrongful act caused his death. In final analysis, therefore, the issue is whether had Mr. Prink survived and brought the action he could successfully have resisted defendants’ demand, in their effort to establish that his injuries resulted from attempted suicide rather than defendants’ negligence, for disclosure of his conversations with Dr. Doyle and with his wife.

Clearly his privilege against self incrimination would not have helped him, for that privilege does not permit a plaintiff to claim affirmative relief and at the same time refuse to disclose information bearing upon his right to maintain his action (Levine v Bornstein, 13 Misc 2d 161, affd 7 AD2d 995, affd 6 NY2d 892). For essentially the same reason (the unfairness of mulcting a defendant in damages without affording him an opportunity to prove his lack of culpability [cf. Chambers v Mississippi, 410 US 284]), Mr. Prink as plaintiff could assert neither the physician-patient privilege (Koump v Smith, 25 NY2d 287, 294; see People v Al-Kanani, 33 NY2d 260, cert den 417 US 916) nor, we now hold, the conjugal privilege to foreclose inquiry concerning whether his injury was the result of an attempt at suicide.

In Koump plaintiff demanded authorization pursuant to CPLR 3121 to obtain defendant’s hospital record in an effort to show that defendant was intoxicated at the time his car crossed a center divider striking plaintiff’s car and injuring plaintiff. We upheld defendant’s claim of privilege in that case because defendant had done no more than deny plaintiff’s allegation that defendant was intoxicated and plaintiff’s only evidence of intoxication was an attorney’s affidavit reciting that the police report of the accident contained a hearsay statement that defendant appeared intoxicated. Nevertheless, we recognized (25 NY2d, at p 294): "that by bringing or defending a personal injury action in which mental or physical condition is affirmatively put in issue, a party waives the privilege” (emphasis in original).

Whatever the ultimate determination of the triers of fact may be in the present case and notwithstanding the presumption against suicide which they will have to consider in reaching their determination, we conclude that it is a matter of common knowledge which we can judicially notice (Richardson, op. tit., § 44) that many apparently accidental deaths are in fact suicides and that a wrongful death complaint predicated upon an alleged accidental fall from a 36th story window is sufficiently equivocal in that respect to put in issue, by plaintiffs affirmative act in bringing the action, decedent’s mental condition (see Matter of Beeler v Hildan Crown Container Corp., 26 AD2d 163 [mental condition in issue where claimant’s decedent died in a fall from a 12th floor office]; see, also, Farber, Theory of Suicide, p 7; Gibbs Suicide, Introduction, p 13; Porterfield, Problem of Suicide [in Gibbs, Suicide], pp 33-34). To hold otherwise is to ignore the realities of the factual situation and to come perilously close to a taking of defendants’ property without due process of law (cf. Chambers v Mississippi, 410 US 284, supra). An additional reason, not however essential to our conclusion, for holding the privileges waived by the bringing of the action is that determination of the pecuniary injury sustained by Mr. Prink’s death necessarily involved his mental condition (see Freeman v Corbin Ave. Bus Co., 60 AD2d 824, mot for lv to app den 44 NY2d 649).

Bearing in mind the purpose for which the privileges in question were created (see Richardson, op. tit, §§ 428, 447), the affirmative stance of plaintiff who claims on behalf of decedent’s distributees to have sustained pecuniary injury as a result of defendants’ negligence, and the unfairness of permitting plaintiff to succeed by hiding behind the privileges asserted, we are satisfied on balance that the better policy is to hold the privileges waived. The basis for that conclusion as to the physician-patient privilege is set forth in Koump v Smith (25 NY2d 287, supra; see, also, Wigmore, op. tit., § 2380a). As to the spousal privilege, its basis is well stated in McCormick, Evidence (2d ed, § 86, p 173) as follows:

"while the danger of injustice from suppression of relevant proof is clear and certain, the probable benefits of the rule of privilege in encouraging marital confidences and wedded harmony, is at best doubtful and marginal.
"Probably the policy of encouraging confidences is not the prime influence in creating and maintaining the privilege. It is really a much more natural and less devious matter. It is a matter of emotion and sentiment. All of us have a feeling of indelicacy and want of decorum in prying into the secrets of husband and wife. It is important to recognize that this is the real source of the privilege. When we do, we realize at once that this motive of delicacy, while worthy and desirable, will not stand in the balance with the need for disclosure in court of the facts upon which a man’s life, liberty, or estate may depend.”

Accordingly the certified question should be answered in the affirmative and the order of the Appellate Division should be affirmed.

Chief Judge Cooke

(dissenting in part). I dissent in part. I would modify the order of the Appellate Division and answer the certified question in the negative.

The order of the Appellate Division affirms an order of Special Term directing plaintiff to appear for oral examination concerning her conversations both with decedent, her late husband, and with decedent’s psychiatrist occurring after decedent’s death. I concur in permitting disclosure of the latter, but I would preclude the questioning of plaintiff about her discussions with decedent concerning the reasons for and circumstances of psychiatric care.

There is no quarrel with the determination that the commencement of the wrongful death action placed in issue decedent’s mental condition, requiring disclosure of the communications between decedent and his psychiatrist. While plaintiff may not rely on the doctor-patient privilege with respect to her talks with the psychiatrist, I cannot concur in the majority’s abrogation of the privilege for confidential marital communications. The result reached today is not supported by the legislative statement codifying the privilege; nor is it justified in the circumstances of this case. More fundamental, however, this result seriously undermines the strong social policy supporting the privilege and marks an unexplained departure from prior precedent (see Warner v Press Pub. Co., 132 NY 181).

The privilege for marital communications was born of the recognition that the privacy surrounding the marital relation should be held inviolate in order to foster mutual confidence between husband and wife (see People v Daghita, 299 NY 194, 199; 8 Wigmore, Evidence [McNaughton rev], § 2332). To prevent destruction of the confidence and trust existing between spouses, it has long been recognized that confidential communications "should not be drawn from either party by any process of law” (People v Hayes, 140 NY 484, 495).

Of course, to mandate such extraordinary protection, the communication must have been made in confidence, for the privilege "encompasses only those statements that are 'confidential’ that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship” (Poppe v Poppe, 3 NY2d 312, 315; see, also, People v Melski, 10 NY2d 78, 80). Thus, there is no privilege for communications that are designed to injure the other spouse or that reflect a disregard of the very relation justifying the privilege (Poppe v Poppe, supra). Nor is testimony concerning a physical assault prohibited merely because it was committed in the absence of third persons (see Poppe v Poppe, supra, at p 317; People v McCormack, 278 App Div 191, 196-197). But a communication that is made in confidence, induced by and in reliance on the marital relationship and indicative of the trust between spouses, is shielded by the privilege. Such confidence should not be destroyed by forces outside the marriage, whether by legal compulsion or otherwise.

The majority does not dispute that the communications sought to be disclosed in the instant case come within the long-honored privilege. Trust in the inviolability of communications to a spouse clearly would prompt one to reveal what are often the painful experiences and feelings necessitating psychiatric treatment. Notwithstanding the conceded applicability of the privilege, the majority overrides its salutary purpose and holds, based upon its view of "the better policy”, that the privilege may not be ' invoked by a plaintiff. A Hobson’s choice thus confronts a litigant: betray the trust and confidence of one’s spouse or forego one’s right to seek redress for a grievous wrong.

The rule codifying the privilege permits no such drastic result. CPLR 4502 (subd [b]) provides that "[a] husband or wife shall not be required, or, without the consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage.” By its terms, the death of one spouse does not destroy the privilege and the surviving spouse may, but cannot be compelled to, disclose the communications by the deceased spouse (see Richardson, Evidence [10th ed — Prince], § 455). And the rule does not mandate that the privilege be available only in a defensive posture. While the Legislature has made the privilege subject to certain exceptions (e.g., Family Ct Act, § 1046, subd [a], par [vii] [privilege not available in a proceeding alleging child abuse or neglect]; Social Services Law, § 384-b, subd 3, par [h] [privilege not available in proceeding to terminate parental rights]), there is no legislative expression that a plaintiff may not employ the shield of the privilege.

Prior to today, waiver of a privilege was accomplished by express consent of the spouse or by failure to interpose a timely objection (Parkhurst v Berdell, 110 NY 386). Indeed, this court has allowed a party seeking affirmative relief to invoke the marital privilege (Warner v Press Pub. Co., 132 NY 181, supra). But, purportedly in the name of fairness, the majority overrides this well-settled principle and concludes that the holder of a privilege waives it when he or she brings an action to seek redress for a wrong committed by another. Such restriction is unwarranted. Any rule of evidence that excludes relevant testimony potentially works some unfairness as a result (see, e.g., CPLR 4519; see, generally, Richardson, § 396 [criticism of the dead man’s statute]). But it is no more unjust to permit a plaintiff to invoke a privilege than it is to permit a defendant to defeat a meritorious claim by hiding behind the same privilege.

The judgment of the Legislature, reflected in the codification of the privilege, expresses the long-standing social policy that the injury to domestic harmony and marital privacy occasioned by the unrestricted search for relevant information is too great to endure (see People v Hayes, 140 NY 484, 496, supra; Common Law Commission, Second Report 13 [1853], quoted in 8 Wigmore, at § 2332). Thus, the balance between potential unfairness to opposing litigants and preservation of the marital privilege has been struck in favor of the privilege —whether information is sought to establish a claim or to defend against it. While some may disagree with the wisdom of this choice, it is improper for a court to substitute its judgment for that of the Legislature (see National Psychological Assn. for Psychoanalysis v University of State of N. Y., 8 NY2d 197, 203, app dsmd 365. US 298; Thompson v Wallin, 301 NY 476, 488, affd sub nom. Adler v Board of Educ., 342 US 485).

These considerations notwithstanding, the majority has placed its imprimatur on a practice which compels a spouse to testify to the contents of communications made in confidence, thereby eviscerating the sphere of marital privacy long cherished in our society. Wholesale destruction of the marital privilege is unnecessary to ensure the integrity of the judicial process and such a drastic rule serves no purpose where the information sought is available through other sources. The impact at trial, if any, of the exercise of the privilege can be minimized by the less drastic measure of permitting the fact finder to draw an unfavorable inference from the failure to disclose. Accordingly, I do not join in this needless assault upon the marital bond.

Fuchsberg, J.

(dissenting in part). Agreeing wholeheartedly with the views expressed by Chief Judge Cooke, I but add that our continued support rather than abandonment of the inter-spousal privilege is indorsed by the psychological and sociological human need for someone in whom to confide and the growing recognition of the constitutional right of privacy (see, e.g., Griswold v Connecticut, 381 US 479; Roe v Wade, 410 US 113; Doe v Bolton, 410 US 179; Matter of Quinlan, 70 NJ 10).

Judges Jasen, Jones and Wachtler concur with Judge Meyer; Chief Judge Cooke dissents in part and votes to modify in an opinion in which Judge Gabrielli concurs and in which Judge Fuchsberg concurs in a separate dissenting memorandum.

Order affirmed, with costs. Question certified answered in the affirmative.

      . While plaintiffs testimony concerning what Dr. Doyle told her is clearly hearsay, that would not protect her from the disclosure required by CPLR 3101 which requires revelation of inadmissible testimony that may lead to discovery of admissible evidence (Baxter v Orans, 63 AD2d 875; see Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406; 3A Weinstein-Korn-Miller, NY Civ Prac, par 3101.05).

      .  To be distinguished, of course, is the common-law rule permitting an eavesdropper to testify concerning an otherwise privileged communication (see Lanza v New York State Joint Legislative Comm., 3 NY2d 92, 97, cert den 355 US 856; Richardson, op. cit., §§ 421, 443, 451 [a rule which, curiously, the Legislature has modified only as to the attorney-client privilege (CPLR 4503) and illegal eavesdropping (CPLR 4506) and not as to all privileges]). Thus, had Mrs. Prink overheard Dr. Doyle’s conversation with her husband as an eavesdropper rather than having learned its content from the doctor she could be required to disclose its content. The distinction, perhaps filagree in nature, is between the unauthorized act of the recipient of the confidence and the act of the eavesdropper who unauthorizedly intrudes himself upon the confidential conference. It results, apparently, from the confidant’s negligence in the eavesdropper situation in not assuring absolute secrecy at the time of disclosure, and the contradiction in terms that would be involved in taxing the confidant with negligence in relying upon the trust which is the very root of his relationship to the person in whom he has confided.

      . Since we are, thus, concerned with the effect of EPTL 5-4.1 on Mr. Frink’s hypothetical action, we do not reach the effect of CPLR 4504 (subd [c]) and its troublesome exception of "information which would tend to disgrace the memory of the decedent” (see Tinney v Neilson’s Flowers, 35 AD2d 532; Richardson, op. cit., § 435) or the equally troublesome question whether suicide disgraces memory (see Richardson, loc. cit.).

      . In light of that holding it is unnecessary for us to consider whether absent the extraordinary facts of the instant case, decedent’s mental condition was put in issue by defendants’ plea of an affirmative defense of suicide (see Constantine v Diello, 24 AD2d 821; Sito v Neumann, 92 Misc 2d 97; see, also, Koump v Smith, 25 NY2d 287, 296-300, supra).

      . (Accord Hutchins & Slesinger, Some Observations on the Law of Evidence: Family Relations, 13 Minn L Rev 675, 682; Hines, Privileged Testimony of Husband and Wife in California, 19 Cal L Rev 390, 410-414.)
      The injustice involved is the more apparent when, as here, the widow will benefit substantially from the recovery and, as the dissent concedes, CPLR 4502 (subd [b]) does not prevent her disclosure of her deceased husband’s statements. The Hobson’s choice suggestion of the dissent simply emphasizes the injustice; there was no grievous wrong for which to seek redress if decedent in fact committed suicide. Nor bearing in mind the presumption against suicide can it be said that the widow’s testimony "serves no purpose” because similar testimony may be available through the physician. Finally, with respect to Warner v Press Pub. Co. (132 NY 181), relied on by the dissent, while its holding was stated in terms of spousal privilege, the final paragraph of the decision strongly suggests that the true rationale for it was the court’s view of the husband’s motivation for his testimony, a factor affecting its weight but which should not affect its admissibility.

       While the Constitution might require that rules of evidence or privileges give way in a criminal proceeding (see Davis v Alaska, 415 US 308 [confrontation clause prevents invocation of privilege against disclosure of juvenile delinquency proceeding]; Chambers v Mississippi, 410 US 284 [confrontation clause and due process override rule prohibiting impeachment of one’s own witness and objection based on hearsay]), no case has been discovered which even intimates that application of the ordinary rules of evidence would be unconstitutional in the civil context.
      That we have apparently accepted the proposition that, as a matter of policy, a plaintiff may not sue on a claim and yet assert the constitutionally guaranteed privilege against self incrimination (see Levine v Bornstein, 6 NY2d 892; Steinbrecher v Wapnick, 24 NY2d 354) does not mean that every privilege must fall without regard to the circumstances of the case or the opposing litigant’s need for the information (cf. 30 Stan L Rev 935 [suggesting that even where confrontation and compulsory process rights are implicated, the defendant’s need for the information in the particular case must be balanced against the interest sought to be protected by the privilege asserted]; see, also, 60 Minn L Rev 1086). Indeed, in Steinbrecher, it was noted that "courts will not permit [the use of the privilege] as a weapon to unfairly prejudice an adversary” (24 NY2d, at p 362 [emphasis added]). Given the unavailability of the doctor-patient privilege here, it cannot be said that defendants will be prejudiced by nondisclosure of marital communications concerning the same matter.


author: Wachtler, J.

text:
    Frederick W. Cook et al., Appellants, v City of Binghamton et al., Respondents.
    Argued October 8, 1979;
    decided November 15, 1979

      POINTS OF COUNSEL

      Walter J. Relihan, Jr., for appellants.
    I. Chapter 965 unconstitutionally impairs the obligation of contracts. (Roddy v Valentine, 268 NY 228; Matter of Day v Mruk, 307 NY 349; Matter of Hammond v City of Fulton, 220 NY 337; Bisbing v Sterling Precision Corp., 34 AD2d 427; Scoville v Surface Tr., 39 Misc 2d 991; Pease v Colucci, 59 AD2d 233.) II. Chapter 965 impairs rights protected by section 7 of article V of the State Constitution. (Matter of Day v Mruk, 307 NY 349; Kranker v Levitt, 30 NY2d 574; Matter of Ayman v Teachers’ Retirement Bd. of City of N. Y., 9 NY2d 119; Birnbaum v New York State Teachers Retirement System, 5 NY2d 1; Matter of Birmingham v Mirrington, 284 App Div 721; Matter of Devens v Gokey, 18 Misc 2d 647; Matter of Robida v Mirrington, 1 Misc 2d 968; Matter of Tyler v Gadwood, 195 Misc 674; Gorman v City of New York, 280 App Div 39, 304 NY 865.) III. Chapter 965 does not authorize a termination of section 207-a benefits until such time as a fireman is subject to mandatory retirement. (Humbeutel v City of New York, 308 NY 904.) IV. Chapter 965, if valid, applies prospectively only. (Matter of Deutsch v Catherwood, 31 NY2d 487; Matter of Ayman v Teachers’ Retirement Bd. of City of N. Y., 9 NY2d 119; Matter of Helfant v Town of Brookhaven, 65 AD2d 623.)

      John W. Park, Corporation Counsel (Kenneth Auerbach of counsel), for City of Binghamton, respondent.
    I. Disabled firemen either receiving or eligible to receive payments pursuant to section 207-a of the General Municipal Law prior to January 1, 1978, do not have a vested right to the receipt of such payments after the effective date of chapter 965 of the Laws of 1977. (Matter of Birmingham v Mirrington, 284 App Div 721; Becker v Huss, 43 NY2d 527; Matter of Schmidt v Wolf Contr. Co., 269 App Div 201, 295 NY 748; Matter of Fleetwood Acres v National Life Ins. Co., 186 Misc 299, 270 App Div 1050; Matter of McGlone, 284 NY 527, affd sub nom. Irving Trust Co. v Day, 314 US 556; Matter of Kornbluth v Reavy, 261 App Div 60; Matter of Friel v McAdoo, 101 App Div 155; Matter of Day v Mruk, 307 NY 349; Dodge v Board of Educ., 302 US 74.) II. Chapter 965 of the Laws of 1977 does not unconstitutionally impair the obligation of contracts.
      (Matter of Schmidt v Wolf Contr. Co., 269 App Div 201, 295 NY 748; Home Bldg. & Loan Assn. v Blaisdell, 290 US 398; United States Trust Co. v New Jersey, 431 US 1; Hotel Dorset Co. v Trust for Cultural Resources of City of N. Y., 46 NY2d 358; Matter of Van Berkel v Power, 16 NY2d 37; Patterson v Carey, 41 NY2d 714.) III. Chapter 965 does not impair rights protected by section 7 of article V of the State Constitution. (Gorman v City of New York, 280 App Div 39, 304 NY 865; Geary v Phillips, 53 Misc 2d 337.) IV. Chapter 965 should be applied and upheld both retroactively and prospectively. (Pease v Colucci, 59 AD2d 233; Adelman v Adelman, 58 Misc 2d 803.)

      Kenneth P. Helisek, Village Attorney, for Village of Johnson City, respondent.
    I. Chapter 965 is constitutional and does not impair the obligation of contracts. (Matter of Schmidt v Wolf Contr. Co., 269 App Div 201, 295 NY 748; Patterson v Carey, 41 NY2d 714; Nassau Supply Co. v Ice Serv. Co., 252 NY 277; Matter of Hammond v City of Fulton, 220 NY 337; Roddy v Valentine, 268 NY 228; People ex rel. Devery v Coler, 173 NY 103; Matter of Friel v McAdoo, 101 App Div 155, 181 NY 558.) II. Chapter 965 does not impair rights protected by section 7 of article V of the State Constitution. (Pease v Colucci, 59 AD2d 233.) III. Chapter 965 of the Laws of 1977 is not unconstitutional by providing for forfeiture of all payments and benefits if a disabled fireman refuses to perform light duty when he is able to do so. (Panico v Young, 62 AD2d 1051.)

      Robert Abrams, Attorney-General (Lew A. Millenbach and Shirley Adelson Siegel of counsel), for State respondents.
    Chapter 965 of the Laws of 1977 is constitutional and the decision of the court below, which so held, should be affirmed. (Patterson v University of State of N. Y., 14 NY2d 432; Matter of Van Berkel v Power, 16 NY2d 37; People v Pagnotta, 25 NY2d 333; Matter of Department of Bldgs. of City of N. Y. [Philco Realty Corp.], 14 NY2d 291; Matter of Birmingham v Mirrington, 284 App Div 721; Matter of Schmidt v Wolf Contr. Co., 269 App Div 201, 295 NY 748; Gorman v City of New York, 280 App Div 39, 304 NY 865; Matter of River Brand Rice Mills v Latrobe Brewing Co., 305 NY 36; Smith v People, 47 NY 330; Matter of Albano v Kirby, 36 NY2d 526.)

      Rodney A. Richards for Village of Endicott, respondent.
    Chapter 965 is constitutional.
   OPINION OF THE COURT

Wachtler, J.

The issue on this appeal is whether chapter 965 of the Laws of 1977 which diminished the statutory disability benefits for regularly employed firemen worked an impairment of rights guaranteed by the contract clause of the Federal Constitution, or by section 7 of article V of the State Constitution. The Appellate Division found that it did not.

The plaintiffs are paid firemen of the City of Binghamton and the Villages of Endicott and Johnson City. All were disabled by illness or injury incurred in the line of duty. Prior to the effective date of chapter 965 each plaintiff was receiving his full salary and medical expenses pursuant to former section 207-a of the General Municipal Law, which provided, in part, that a paid fireman, other than those of the City of New York, if injured in the performance of his duties, "shall be paid by the municipality or fire district by which he is employed the full amount of his regular salary or wages until his disability arising therefrom has ceased”.

When it enacted chapter 965 the Legislature had before it information indicating that payments required by section 207-a of the General Municipal Law substantially decreased the financial ability of municipalities to retain the services of a full complement of firefighters, and that the apparent inequity of permitting disabled men to work at jobs in the private sector while receiving full salary might depress the morale of able-bodied firefighters still in service.

As previously noted, chapter 965 worked substantial changes in the operation of section 207-a of the General Municipal Law. It provided: First, that the payment of full salary and benefits to a disabled fireman shall not continue beyond "such time as he shall have attained the mandatory service retirement age applicable to him or shall have attained the age or performed the period of service specified by applicable law for the termination of his service”; Second, that if a fireman disabled in the performance of his duties is granted an accidental disability retirement pursuant to section 363 of the Retirement and Social Security Law or its equivalent, the municipality shall pay him the difference between the pension allowance and his full salary, but only until the time at which he may be involuntarily retired, and if the disabled fireman refuses to apply for an accidental disability retirement, the municipality may apply for him; Third, that a disabled fireman who is not granted an accidental disability retirement may be required to perform light duty as a fireman, or where consistent with civil service requirements and the fireman consents, may be transferred to another municipal department; and Fourth, that if a disabled fireman takes outside employment, he forfeits any benefits under section 207-a.

Plaintiffs argue that the application of the provisions of chapter 965 to them unconstitutionally impairs the obligation of contracts in violation of section 10 of article I of the United States Constitution.

We note at the outset that there is not present here the circumstance of a contract-in-fact, bargained for by the parties and couched in contractual terms, such as in Patterson v Carey (41 NY2d 714) or in United States Trust Co. v New Jersey (431 US 1) both involving covenants with the holders of bonds issued by public authorities. As in most cases involving the contract clause, the essential question is the existence of a contractual relation. We begin our analysis with the observation that "[t]he principal function of a legislative body is not to make contracts but to make laws which declare the policy of the state and are subject to repeal when a subsequent legislature shall determine to alter that policy. Nevertheless, it is established that a legislative enactment may contain provisions which, when accepted as the basis of action by individuals, become contracts between them and the State or its subdivisions with the protection of Art. I, § 10.” (Indiana ex rel. Anderson v Brand, 303 US 95, 100.)

In considering whether a State statute impairs the obligation of a contract, "the existence of the contract and the nature and extent of its obligation become federal questions” (Irving Trust Co. v Day, 314 US 556, 561) which are to be determined by "an appraisal of the statutes of the State and the decisions of its courts” (Indiana, supra, at p 100). The burden of showing the unconstitutionality of a statute, or course, rests on the party which attacks its validity (Matter of Van Berkel v Power, 16 NY2d 37, 40) and every legislative enactment carries a strong presumption of constitutionality (Borden's Co. v Baldwin, 293 US 194, 209; Patterson v University of State of N. Y., 14 NY2d 432, 438).

Generally, a statute will itself be treated as a contract when its language and the circumstances manifest a legislative intent to create private rights of a contractual nature enforceable against the State. In Indiana (supra) for example, the statute in question employed the term "contract” a total of 25 times, defining the relation of teachers to the school district and stating the conditions for a teacher’s termination. Moreover, "the tenor of the Act indicates that the word 'contract’ was not used inadvertently or in other than its usual legal meaning” and prior decisions of the State’s highest court interpreting that statute had uniformly held the rights created pursuant to it to be contractual in nature (Indiana, supra, at p 105). Under those circumstances, the United States Supreme Court found that the obligation fell within the ambit of section 10 of article I.

On the other hand, certain types of legislative acts, including those fixing salaries and compensation, or setting the term and tenure of public officers, are not presumed to create a contract: "The presumption is that such a law is not intended to create private contractual or vested rights but merely declares a policy to be pursued until the legislature shall ordain otherwise. * * * If, upon a construction of the statute, it is found that the payments are gratuities, involving no agreement of the parties, the grant of them creates no vested right” (Dodge v Board of Educ., 302 US 74, 79).

In the case at bar the statute in contention contains no words of contract, as in Indiana (supra). There is no hint in its terms that the consent or agreement of any person is required for the statute to have its intended effect. On the contrary, it expresses a public policy as determined by the Legislature. Further, the matters addressed by the statute, i.e., payment of "regular salary or wages” for the period "until his disability * * * has ceased”, both of which are terms and conditions of employment, are indisputably among those classes of legislative acts long presumed to create no private contractual rights.

It is apparent then, that if an enforceable contract right is to be generated by the statute, it must be sought in the holdings of this court. However, an examination of the cases cited by the plaintiffs for the proposition that a consummated unilateral contract arose at the moment of the plaintiffs’ injuries is not persuasive of their contention.

Roddy v Valentine (268 NY 228) and Matter of Day v Mruk (307 NY 349), involved questions of entitlements to pension benefits; Matter of Hammond v City of Fulton (220 NY 337), posed the appealing question of whether the widow of a fireman who died of injuries suffered in the performance of his duties should receive a death benefit. While those cases may be said, generally, to hold that a benefit becomes a vested right upon the performance of the requested service and the occurrence of a specified event, the very particularity of the precipitating event, i.e., death or retirement, contrasted with the ongoing relationship by which salary is earned and accrued, urges that those cases not be considered controlling in the instant circumstances.

As we noted in Conner v City of New York (5 NY 285, 296): "The prospective salary or other emoluments of a public office * * * are like daily wages unearned, and which may never be earned; the incumbent may die or resign, and his place be filled, and the wages earned by another. The right to the compensation grows out of the rendition of the services, and not out of any contract between the government and the officer, that the services shall be rendered by him.”

We find that the operation of former section 207-a of the General Municipal Law did not give rise to a contractual relation, either in fact or by implication; it necessarily follows, therefore, that there can have been no impermissible impairment of the obligation of contract.

Plaintiffs’ second argument is that the operation of chapter 965 impairs their rights as members of a public pension system, in violation of section 7 of article V of the State Constitution which construes membership in any pension or retirement system as a contractual relationship which "shall not be diminished or impaired”. They contend, in short, that the right to elect a particular retirement plan, including an early retirement plan, and, under the proper circumstances, to withdraw from a plan chosen, are valuable rights and benefits of membership in a public retirement system, and that chapter 965, by permitting them to be involuntarily retired in advance of the general mandatory retirement age, impermissibly impairs and diminishes the benefits of their membership.

It is long settled, however, that the fact that there can be no constitutional impairment of pension system benefits does not create a constitutional right to stay in public employment. To do this would place the regulation of public employment beyond the control of any authority, which certainly was not intended by our Constitution (Gorman v City of New York, 280 App Div 39, 45, affd 304 NY 865).

As we have already indicated, however, section 207-a of the General Municipal Law was enacted as a matter of public policy, in the exercise of the police power, to protect firemen. The benefits it afforded were part of the terms and conditions of employment which the Legislature properly could change at will without interdiction by section 7 of article V. It would be disingenuous to maintain, and we do not, that a change in the terms of employment such as was effected by chapter 965, would have no influence whatever on the retirement benefits of those to whom it applied. Any such influence, however, is minor and entirely incidental, and may not be said to lie within the area of actions prohibited by the Constitution.

One additional point, which is primarily a question of statutory construction, remains for our consideration.

The statute, as amended by chapter 965 now provides without further definition, that payment of salary and benefits shall not continue after "such time as he shall have attained the mandatory service retirement age applicable to him or shall have attained the age or performed the period of service specified by applicable law for the termination of his service”.

In apparent reliance upon that language, the City of Binghamton has terminated the payment of salary benefits under section 207-a to all the plaintiffs who have reached an age or performed a period of service which would otherwise qualify them for a voluntary retirement under one of the optional plans available under the Retirement and Social Security Law.

Apart from an accidental disability retirement pursuant to section 363 of the Retirement and Social Security Law, which the municipality may compel if the disabled fireman is deemed to qualify for such an allowance, the only age specified for involuntary retirement occurs at age 70 (Retirement and Social Security Law, §§ 70, 370), or, in the case of those who have voluntarily elected certain additional pension benefits pursuant to section 384 of the Retirement and Social Security Law, at age 62. In each case, however, the additional benefit is an option which the member is free to accept or reject. If the additional benefit is not chosen, the member is not subject to separation from service at age 62, hence is not subject to mandatory retirement until age 70.

The order of the Appellate Division, therefore, should be modified to the extent of declaring that disabled firemen receiving benefits under section 207-a of the General Municipal Law may not be separated from service until they reach the mandatory retirement age of 70, unless they have voluntarily elected additional benefits under section 384 of the Retirement and Social Security Law, and otherwise affirmed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Fuchsberg and Meyer concur.

Order modified, with costs to defendants, in accordance with the opinion herein and, as so modified, affirmed.

       The Governor’s memorandum approving chapter 965 states that it amends section 207-a to do the following:
      "permit the retirement of a fireman eligible for disability retirement benefits, with the municipality paying only the difference between the disability benefit and his normal salary;
      "permit the municipality to require a fireman who is not eligible for accidental disability retirement to perform appropriate duties consistent with his status as a fireman;
      "provide for the retirement of a fireman not granted accidental disability retirement upon his reaching normal retirement age, with the municipality being liable only for his medical expenses;
      "allow the municipality to transfer a disabled fireman to a position in the same or another agency or department with the fireman’s consent.
      "prohibit a disabled fireman collecting a salary from a municipality from engaging in outside employment.” (NY Legis Ann, 1977, p 336.)


text:
    The People of the State of New York, Respondent, v Bernard Lavender, Appellant.
    Argued October 10, 1979;
    decided November 20, 1979

      POINTS OF COUNSEL

      Herbert A. Lyon, Franklin C. Hyman, William M. Erlbaum, Jonathan R. Goldberg and Carol Mellor for appellant.
    I. The People failed to establish appellant’s guilt beyond a reasonable doubt in connection with counts three and four, the felony counts. (Ettman v Federal Life Ins. Co., 48 F Supp 578; People

      v Winkleman, 273 App Div 779; Copperman v People, 56 NY 591; People v Nowakowski, 39 AD2d 621; People v Checkman, 284 App Div 44.) II. Subdivision 1 of section B32-358.0 of the Administrative Code cannot be validly invoked against this appellant. (Coates v City of Cincinnati, 402 US 611; Bouie v City of Columbia, 378 US 347; Flaxer v United States, 358 US 147; Wieman v Updegraff, 344 US 183.) III. The interest of justice requires a corrective order. (Herring v New York, 422 US 853; Matter of Isserman, 345 US 286.)

      Eugene Gold, District Attorney (Michael J. Halberstam of counsel), for respondent.
    I. Appellant’s guilt of the Administrative Code violations was proven beyond a reasonable doubt. (Glasser v United States, 315 US 60; People v Hingerton, 26 NY2d 790.) II. Subdivision 1 of section B32-358.0 of the Administrative Code is constitutional and may properly be applied to appellant. (People v Harris, 79 Misc 2d 181; People v Bryant, 47 AD2d 51; United States ex rel. Daneif v Henderson, 501 F2d 1180; United States v Harriss, 347 US 612; Dennis v United States, 341 US 494; Matter of Pomeroy v Whalen, 44 NY2d 992; Jordan v De George, 341 US 223; United States v National Dairy Corp., 372 US 29; People v Cook, 34 NY2d 100.)
   OPINION OF THE COURT

Meyer, J.

The issues presented by this appeal are whether section B32-358.0 of the Administrative Code of the City of New York, which makes it a misdemeanor to abandon or willfully fail to perform, without justification, a home improvement contract, is unconstitutional (1) for vagueness because it fails to specify the required mental state and does not indicate what constitutes justification, or (2) because in violation of the Thirteenth Amendment’s proscription of involuntary servitude, and whether the evidence was sufficient to present a jury question. We hold that the evidence was sufficient on at least one of the remaining counts of the indictment and, therefore, reach the constitutional issues. Concluding that the section violates the Thirteenth Amendment and the acts of Congress in furtherance of it, we reverse and dismiss the remaining counts of the indictment and, therefore, do not reach the vagueness issue.

Defendant Bernard Lavender was president and sole stockholder of All-Weather Exteriors, Inc., a corporation established in 1970, which employed some 25 people and whose gross business in home improvement work was in excess of $2,000,000 per year. Indicted on 41 counts relating to transactions of All-Weather, Lavender was convicted after a bench trial of only six counts, all of the others being either dismissed prior to the close of trial or having resulted in acquittal. The convictions on two of those counts charging possession of a forged instrument and the making of an apparently sworn false statement were affirmed by the Appellate Division but were vacated by the trial court on a postconviction motion based upon newly discovered evidence and, therefore, are no longer before us. Lavender’s conviction on count eight of the indictment, charging willful deviation from the terms of the home improvement contract in question, was reversed by the Appellate Division (54 AD2d 947). On the other three counts, charging abandonment without justification of contracts with Gloria Roberts, Lee Bowman and Clara Jones, the Appellate Division affirmed the convictions but on reargument deleted the six months prison sentence imposed on each, leaving as the remaining sentence a fine of $1,000 on each of the three counts (71 AD2d 844). The matter is before us on leave granted by a member of this court (41 NY2d 867 and 43 NY2d 929).

The provision under which defendant Lavender was convicted on the three counts still surviving is a part of article 42, by which the city regulates the home improvement business. Section B32-358.0 details the acts prohibited, violation of which prohibition is by section B32-365.0 made a misdemeanor punishable by imprisonment for not more than six months or a fine of not more than $1,000 or both. Subdivision 1 of section B32-358.0 prohibits "[abandonment or willful failure to perform, without justification, any home improvement contract or project engaged in or undertaken by a contractor”.

Defendant argues that a corporate officer may not be held criminally liable solely on the basis of acts performed by other officers or agents of the corporation and that in any event it was the burden of the People to show abandonment without justification. The evidence does not connect defendant Lavender with the Roberts or the Jones contract either at the inception of those contracts or later, but does connect him with the Bowman contract, not when it was made in May of 1972, but as a result of the Bowmans’ complaints in December, 1972. Their complaint was that though some of the walls, ceilings, heating and sanitary facilities had been ripped out by workmen who appeared sporadically in connection with the contract, it remained essentially incomplete at the time of complaint and, indeed, at the time of trial. Mrs. Bowman testified that Lavender twice appeared at her home in December, 1972 and promised that the work would be completed but never did so. Her testimony was countered by Lavender’s that his offer to complete the work was conditioned upon Mrs. Bowman authorizing him to do so and that eventually she was given $2,500 in cash and $3,000 worth of building materials in settlement, which ended the matter. Since the settlement came after the' matter was before the District Attorney’s staff and defendant Lavender signed a certificate of completion for the Bowman contract which was false, there clearly was sufficient evidence to present an issue for the trier of fact concerning the Bowman contract, though not with respect to the other two contracts.

We are thus brought to consideration of the constitutional issues, but as already noted do not reach the vagueness question since we hold the provision in question unconstitutional because in violation of the Thirteenth Amendment and the provisions of the United States Code enacted in enforcement of that amendment. That conclusion, adumbrated in our decision in People v Pickett (19 NY2d 170, 177) is mandated by decisions of the United States Supreme Court in Pollock v Williams (322 US 4); Taylor v Georgia (315 US 25); United States v Reynolds (235 US 133), and Bailey v Alabama (219 US 219). Though those cases involved State statutes making criminal the failure to carry out a contract for labor or services on which an advance had been received (whether directly or through the intervention of a surety who had paid a judgment for breach of the underlying contract confessed by the laborer or provider of service), and thus more clearly involved peonage than does the Administrative Code subdivision here in question, the principles they establish dictate the result in this case. The Bailey case held that the voluntary nature of the underlying contract could expose the debtor to judgment for breach, but not to enforced labor and that a State statute which attempted to do so was in violation of both the Thirteenth Amendment and the act of Congress passed in furtherance of it (219 US, at pp 242, 245). Taylor held the statute not saved by the argument that its target was a presumed initial fraud rather than a subsequent breach, noting (315 US, at p 30) that "the subsequent breach of the contract by the defendant, however capricious or reprehensible, does not establish a fraudulent intent at the initial stage of the transaction”, and in Pollock (322 US, at p 24), the Supreme Court after analyzing its prior decisions summed the matter up in the following pertinent paragraph: "It is true that in each opinion dealing with statutes of this type this Court has expressly recognized the right of the state to punish fraud, even in matters of this kind, by statutes which do not either in form or in operation lend themselves to sheltering the practice of peonage. Deceit is not put beyond the power of the state because the cheat is a laborer nor because the device for swindling is an agreement to labor. But when the state undertakes to deal with this specialized form of fraud, it must respect the constitutional and statutory command that it may not make failure to labor in discharge of a debt any part of a crime. It may not directly or indirectly command involuntary servitude, even if it was voluntarily contracted for.”

Since the Administrative Code provision quoted above is directed not at the fraud involved in receiving money in relation to a contract with the present intention not to perform, but solely at the failure to perform the services necessary to carry out the contract, it violates both the Thirteenth Amendment and the sections of the United States Code quoted in footnote 3.

Accordingly, the order of the Appellate Division, dated November 15, 1976, as modified by the order of that court, dated December 7, 1977, insofar as appealed from, should be reversed, and the remaining counts of the indictment should be dismissed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order reversed and the remaining counts of the indictment dismissed.

      . So in the original. Probably should read "abandonment of’.

      . Section 1 of the amendment reads: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have -been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” That provision is self-executing (Bailey v Alabama, 219 US 219, 241), but section 2 of the amendment also gives the Congress power to enforce the amendment by legislation.

      . US Code (tit 42, § 1994) provides that "The holding of any person to service or labor under the system known as peonage is abolished and forever prohibited in any Territory or State of the United States; and all acts, laws, resolutions, orders, regulations, or usages of any Territory or State, which have heretofore established, maintained, or enforced, or by virtue of which any attempt shall hereafter be made to establish, maintain, or enforce, directly or indirectly, the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise, are declared null and void” and US Code (tit 18, § 1581, subd [a]) requires that "(a) Whoever holds or returns any person to a condition of peonage, or arrests any person with the intent of placing him in or returning him to a condition of peonage, shall be fined not more than $5,000 or imprisoned not more than five years, or both.”

      . "The essence of the thing [peonage] is compulsory service in payment of a debt. A peon is one who is compelled to work for his creditor until his debt is paid.” (Bailey v Alabama, 219 US 219, 242, supra.)