author:
      Per Curiam.
     Fuchsberg, J.

text:
    In the Matter of Morris E. Spector, a Justice of the Supreme Court of the State of New York, Petitioner, v State Commission on Judicial Conduct, Respondent.
    Argued March 29, 1979;
    decided June 5, 1979

      POINTS OF COUNSEL

      Irving Anolik for petitioner.
    I. This court ought to reject the determinations of the majority opinion of the Commission on Judicial Conduct since there is insufficient evidence justifying the finding of an "appearance of impropriety”. The criteria of the commission, which apparently precludes the appointment of a relative of a sitting Judge by another sitting Judge despite overwhelming ability and fitness of the appointee, is arbitrary, capricious, and without any rational basis. (Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Colton v Berman, 21 NY2d 322; United States v Nix, 501 F2d 516; Landry v Daley, 280 F Supp 968.) II. The hearing before the Commission on Judicial Conduct was tainted by extraneous, inflammatory remarks by the administrator, adverting to matters not within the purview of the charges. Thus, a fair hearing was denied. Moreover, the timing of the charges, coming on the eve of mandatory retirement, was also unfair and perhaps unconstitutional (Fourteenth Amendment). (Matter of Ruffalo, 390 US 544, 391 US 961; Erdmann v Stevens, 458 F2d 1205, 409 US 889; Goss v Lopez, 419 US 565; Morrissey v Brewer, 408 US 471; Bell v Burson, 402 US 535; Goldberg v Kelly, 397 US 254; Willner v Committee on Character, 373 US 96.) III. Since the proceedings herein were started at a point in time where it was impossible for petitioner to receive 30 days’ time within which to file an application to this court to contest the determination against him, coupled with the fact that the charges were brought almost at the eve of Justice Spector’s mandatory retirement, the complaint should be dismissed for procedural violations of due process. (Ker v California, 374 US 23.)

      Gerald Stern for respondent.
    I. An appearance of impropriety is created when a Judge appoints the sens of other Judges who appoint his son; such an appearance of impropriety is compounded when (a) the appointing Judge knows of the other appointments and (b) friendship with the other Judges is a motivating factor. (Matter of Suglia, 36 AD2d 326; United States v Paramount Pictures, 334 US 131; Milgram v Loew’s, Inc., 94 F Supp 416; People v Connolly, 253 NY 330; Sarisohn v Appellate Div., 2d Dept., Supreme Ct. of State of N. Y., 265 F Supp 455; Matter of Pfingst, 33 NY2d [a]; Bartlett v Enea, 45 AD2d 471; Bartlett v Flynn, 50 AD2d 401; Napolitano v Ward, 317 F Supp 79, 457 F2d 279, 409 US 1037.) II. Neither the conduct of the administrator nor the timing of the charges resulted in a denial of a fair hearing. III. The imposition of a determination during the last month of a Judge’s term does not violate procedural due process or fundamental fairness, and is consistent in every respect with the letter and spirit of the applicable law. IV. The commission’s combination of investigative and adjudicative functions is valid under the United States Constitution. (Withrow v Larkin, 421 US 35; Halleck v Berliner, 427 F Supp 1225; Hortonville Dist. v Hortonville Educ. Assn., 426 US 482; Trade Comm. v Cement Inst., 333 US 683; Friedman v State of New York, 24 NY2d 528, 397 US 317; Matter of Sarisohn, 21 NY2d 36.)
   OPINION OF THE COURT

Per Curiam.

It is appropriate in the circumstances disclosed in this record that petitioner be admonished for the appearances of impropriety stemming from appointments made by him of the sons of two other Judges during periods when such other Judges were making appointments of his son.

In June, 1978 a formal complaint was served on petitioner by the Commission on Judicial Conduct alleging four charges of misconduct arising out of petitioner's appointment of attorneys as guardians ad litem, receivers, referees and in one instance the committee of an incompetent in judicial proceedings pending before him. After hearings, the Referee appointed to hear and report to the commission found that two of the four charges had not been sustained. As to the other two charges, the Referee concluded that, while there was no basis for other criticism of petitioner’s conduct, two of the appointments of Burton Fine, the son of Mr. Justice Sidney Fine, and four of the appointments of Sanford Postel, the son of Mr. Justice George Posted, were not "free from the appearance of impropriety”. The Referee did not, however, find any actual impropriety.

The commission found that in the period from March, 1968 to November, 1974 petitioner appointed the son of Justice Fine on 2 occasions while Justice Fine appointed petitioner’s son on 8 occasions and appointed the son of Justice Posted on 10 occasions while Justice Posted appointed petitioner’s son on 5 occasions. The commission further found that at the time petitioner was making these appointments he was aware of the appointments of his son being made by the other Judges and concluded that, although there was no "quid pro quo” understanding, the cross appointments gave the "appearance of impropriety” in violation of Canon 4 of the Canons of Judicial Ethics and the applicable portion of section 33 of the Rules Governing Judicial Conduct. A majority of the members of the commission determined that the appropriate sanction was that petitioner be admonished. Three members of the commission, however, while adopting all the factual findings made by the Referee, concluded that such findings did not warrant the imposition of discipline under subdivision 7 of section 44 of the Judiciary Law.

Preliminarily, we note that, undoubtedly because we are the only court vested with power to review the commission’s determination, the scope of our review is unusually broad, encompassing as it does authority not only to "review the commission’s findings of fact and conclusions of law”, but also to "impose a less or more severe sanction * * * than the one determined by the commission, or [to] impose no sanction”. (NY Const, art VI, § 22, subds a, d; Judiciary Law, § 44, subd 9.) Thus, the issues before us include the correctness of the commission’s findings of fact and conclusions of law, as well as the appropriateness of the commission’s determination that petitioner be admonished, the lowest in the scale of sanctions prescribed for judicial misconduct. As a result of our review we accept the determination made by the commission.

It serves first to identify and to consider the nature of the judicial conduct which is the subject of this disciplinary proceeding. Our analysis recognizes two levels of consideration. The progression may be simply stated. First, nepotism is to be condemned, and disguised nepotism imports an additional component of evil because, implicitly conceding that evident nepotism would be unacceptable, the actor seeks to conceal what he is really accomplishing. Second, and this is peculiar to the judiciary, even if it cannot be said that there is proof of the fact of disguised nepotism, an appearance of such impropriety is no less to be condemned than is the impropriety itself.

Nepotism in the judiciary was outrightly condemned when the first Canons of Judicial Ethics were adopted by the American Bar Association in 1924. Canon 12 as then adopted provided in pertinent part:

"Appointees of the Judiciary and Their Compensation.

"Trustees, receivers, masters, referees, guardians and other persons appointed by a judge to aid in the administration of justice should have the strictest probity and impartiality and should be selected with a view solely to their character and fitness. The power of making such appointments should not be exercised by him for personal or partisan advantage. He should not permit his appointments to be controlled by others than himself. He should also avoid nepotism and undue favoritism in his appointments.”

This unequivocal disapproval has been carried forward, undiminished, into the present Code of Judicial Conduct. Canon 3 (subd B, par [4]) now provides: "A judge should not make unnecessary appointments. He should exercise his power of appointment only on the basis of merit, avoiding nepotism and favoritism. He should not approve compensation of appointees beyond the fair value of services rendered.”

A similar and more explicit injunction is now to be found in section 33.3 (subd [b], par [4]) of the Rules Governing Judicial Conduct (22 NYCRR 33.3 [b] [4], filed Jan. 21, 1974, effective Jan. 1, 1974): "A judge shall not make unnecessary appointments. He shall exercise his power of appointment only on the basis of merit, avoiding favoritism. A judge shall not appoint or vote for the appointment of any person as a member of his staff or that of the court of which he is a member, or as an appointee in a judicial proceeding, who is a relative within the sixth degree of relationship of either the judge or the judge’s spouse. A judge shall also refrain from recommending a relative for appointment or employment to another judge serving in the same court. He shall not approve compensation of appointees beyond the fair value of services rendered.”

Concededly this case does not present an instance of open nepotism. The appointment of his son by any Judge would be both unthinkable and intolerable whatever might be the son’s character and fitness or his father’s peculiar qualification in the circumstances to assess such character and fitness. The enlarged evil in this instance is that an arrangement for cross appointments would not only offend the antinepotism principle; it would go a step further, seeking to accomplish the objectives of nepotism while obscuring the fact thereof.

We address then the circumstance that both the Referee and the commission have concluded that in this instance there was in fact no quid pro quo impropriety in the appointments made by petitioner. Both have also determined, however — and this, of course, is the predicate for the disciplinary action taken — that petitioner’s participation in the pattern of cross appointments gave an appearance of impropriety, in effect permitting the inference that each of the Judges involved was by this means securing appointments for his own son. Additionally, the commission observed that petitioner might be perceived as having resorted to this device to avoid a charge of nepotism. Here, too, the articulation of the canons has been clear and undeviating. When first adopted in 1924 the Canons of Judicial Ethics likewise proscribed the appearance of impropriety. Canon 4 provided: "A judge’s official conduct should be free from impropriety and the appearance of impropriety; he should avoid infractions of law; and his personal behavior, not only upon the Bench and in the performance of judicial duties, but also in his everyday life should be beyond reproach.” Canon 2 of the present Code of Judicial Conduct states the continuing principle succinctly: "A judge should avoid impropriety and the appearance of impropriety in all his activities.” Similarly, section 33.2 of the Rules Governing Judicial Conduct must be read to condemn the appearance as well as the fact of impropriety (22 NYCRR 33.2).

Reluctance to impose a sanction in this case would be taken as reflecting an attitude of tolerance of judicial misconduct which is all too often popularly attributed to the judiciary. To characterize the canonical injunction against the appearance of impropriety as involving a concern with what could be a very subjective and often faulty public perception would be to fail to comprehend the principle. The community, and surely the Judges themselves, are entitled to insist on a more demanding standard. As Chief Judge Cardozo wrote in Meinhard v Salmon (249 NY 458, 464): "A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior”. And there is no higher order of fiduciary responsibility than that assumed by a Judge. It would ill befit the courts and the members of the judiciary to suggest that Judges are to be measured against no higher norm of conduct than may at times and in some places unhappily have been perceived as reflecting the mores of a judicial marketplace. Petitioner in this case makes no plea to be measured by any such coarse or mean yardstick. To suggest, as does the dissenter, that there has been a modus operandi which has condoned the making of appointments subject to the personal preferences of the appointing Judge (pp 470-471) affords no proper ground on which to excuse the present conduct. To the extent that such a practice may have existed in certain areas, it has been aberrant; certainly it has had the support and approval only of its practitioners.

In the present case the fact that cross appointments were knowingly made by petitioner during the period in question is not disputed. Notwithstanding the absence of proof of any actual or intended impropriety there was thereby inescapably created a circumstantial appearance of impropriety.

While petitioner’s personal relationship with the appointees may indeed have enabled him better to evaluate their qualifications, we do not subscribe to the view expressed by the dissenting members of the commission that, if the appointee is otherwise fully qualified to receive the appointment, his filial relationship with another member of the judiciary can be ignored. It may be that, in special circumstances where the appointee is uniquely qualified and the appointment is openly made with the consent of the parties or such consent is withheld for mere tactical partisan advantage or other insufficient reason, an otherwise disabling relationship between the appointing Judge and the appointee may not preclude appointment. But this is not that case. Nor do we accept the dissenters’ conclusion that the cross appointments here may be overlooked as de minimis in view of the "thousands of appointments made by the petitioner during his judicial service” and his extended record of public service. Finally, we perceive no proper basis for giving prospective effect only to condemnation of the appearance of impropriety created by cross appointments as was further suggested by one of the dissenting members of the commission.

It remains to make one additional observation. We think it entirely improper on the part of the administrator, on argument of the motions addressed to the Referee’s report in connection with the commission’s consideration of the sanction to be imposed, to have introduced evidence of additional, alleged misconduct on the part of petitioner. The subject matter of these supplemental allegations had not been included in the charges or raised before the Referee. It is irrelevant that the administrator claims to have given petitioner’s counsel advance notice of his intention to refer to this impertinent material. Unproved charges, for which there was no basis in the record, had no place in the commission’s consideration as to the sanction appropriately to be imposed on the predicate of its findings of fact and conclusions of law drawn from the proof in the record. In all the circumstances we are satisfied, however, that the erroneous references to this extraneous material did not affect the determination made by the commission.

Accordingly, we accept the determination of the commission that petitioner be admonished.

Fuchsberg, J.

(dissenting). As were three of the members of the commission, I am of the opinion that the imposition of discipline, even the one lowest in the scale of sanctions, is not warranted in the circumstances of this case.

I accept the proposition that a Judge’s appointment of a person who enjoys a filial relationship with a second Judge, particularly where the two Judges are members of the same court, may be perceived as creating an appearance of impropriety. Nor do I doubt that the same proposition may apply when, though innocently intended, appointments made by both Judges have produced a crossover situation. And, of course, I approve the commission’s enforcement of such a standard where appropriate.

In my view it is not appropriate to do so here. The system governing the selection of referees, guardians ad litem, and other ad hoc functionaries essential to the conduct of court business for a long time was one subject to the personal preferences of the appointing Judges. There was no secret about this modus operandi. No canon or rule specifically assigned any impropriety or appearance of impropriety to it. To apply a current perception of impropriety retrospectively as the basis for the finding that acts that were once regarded as proper when performed are now to be classified as improper is fundamentally wrong. To do so exacts from the petitioner expiation for the legal community’s failure to have articulated and imposed a clearer standard in the past.

Before amplifying my views, a few words about the petitioner are in order. Justice Spector reached the extended retirement age of 76 in 1978. He had then completed 38 years of continuous and unblemished public service, the last 22 as a member of the judiciary with the final 6 the result of three two-year appointments, the maximum granted to Judges where there is a felt need for their continued services after they have reached the regular retirement age of 70. Even when, in mid-December, on the very eve of his departure from office, the commission issued its public recommendation that he be admonished, it raised no question concerning the integrity or competence with which he functioned in his public career.

The operative facts pertaining to the commission’s charge are simple. They were fully developed and ultimately presented to us in extensive hearings conducted by the commission and its able and conscientious counsel. And, since Justice Spector gave the inquiry his full co-operation, they are not in dispute. They involve the inclusion of two lawyer-sons of fellow Justices among the thousands of appointments the Justice routinely was called upon to make in the course of facilitating the processing of cases. One of the appointees was chosen on only two occasions over a three and a half year period almost a decade ago. The other averaged about two appointments a year over a five and a half year span. None of these assignments was of major import. All were made , publicly. Each fulfilled his responsibilities completely. It is not suggested that any conflict of interest was involved in any way. The appointees received only the modest fees customarily allowed in such cases; in some instances, no charge was made at all.

During the years in which the two appointees undertook these assignments, the petitioner’s son, also a lawyer and indisputably qualified, was called upon to discharge similar tasks for the other Justices on a very limited number of occasions. The appointments did not correspond with those made by Justice Spector, nor was there any evidence that there had been either a matching of fees or any attempt at reciprocation. As a result, there is no contention that one was a quid pro quo for the other. To the contrary, petitioner testified without any contradiction that his long personal and professional acquaintance with the appointees and their families provided him with an unusually reliable basis for personally judging their suitability for the appointments.

Nevertheless, the commission concluded that the choice of the two appointees runs counter to a broadly worded judicial canon adopted administratively in New York at about the end of the period during which these appointments had issued. The canon enjoins Judges to avoid the appearance of impropriety. However, the commission points to no canon of ethics or other rule of judicial conduct which up to now interdicted the appointment of relatives of other sitting Judges, none automatically disqualifying such individuals from being considered for appointments, and none advising that such selections would give rise to an appearance of impropriety. Rather, at the argument of this appeal, the commission’s counsel candidly conceded there were none.

The "appearance of impropriety” concept is beset by legal and moral complexity. The concern is with what can be a very subjective and often faulty public perception. It is significant that the official reporter’s notes, after characterizing the canon on appearance of impropriety as virtually "hortatory”, illustrates its commentary solely with a discussion of problems involving "influence peddling”, obviously a form of conduct in which "appearance” is often an integral part of the substantive evil; under ejusdem generis principles, this is hardly an indication that the section is to be freely applied, and even less that it is to be extrapolated to circumstances akin to those present here (see Thode, Reporter’s Notes to Code of Judicial Conduct, p 49). It would appear to follow that, absent an accompanying substantive breach, a mere appearance of impropriety should not automatically merit condemnation.

We need look no further than to two of the qualities we demand of our Judges — courage and independence — to see how ready jurists must be, if the need arises, to brook "public clamor, or fear of criticism” (Code of Judicial Conduct, Canon 3, subd A, par [1]). Yet, the appearance provision’s general "caution against unidentified wrongs” (McKay, The Judiciary and Nonjudicial Activities, 35 Law & Contemp Prob 9, 14) has led respected authority to conclude that it is so "troublesomely vague as a guide to conduct” that "it comes close to being an appeal to conformity for conformity’s sake” (Frank, Disqualification of Judges: In Support of the Bayh Bill, 35 Law & Contemp Prob 43, 59-60). Since "appearances” are matters of perception rather than fact it is not difficult to appreciate the fear so expressed and the need to invoke the canon with great restraint.

Indeed, lack of specificity as to what conduct makes a Judge vulnerable to a charge of appearance of impropriety may bear serious due process implications. Leaving the rules expected to be observed unidentified is bound to burden our Judges with uncertainty as to whether what is acceptable today will be deemed aberrant tomorrow. Putting men and women who have to judge the rights of others under such undeserved stress tends to undermine their own sense of worth. Our legal system should treat those who preside over it with more regard (Fuller, The Morality of Law [rev ed, 1969], 26-29, 38-39).

The drawbacks inherent in the uncharted vagueness of the "appearance” canon were also remarked upon by former United States Supreme Court Justice Arthur Goldberg, who, after characterizing the canon as "unbelievably ambiguous”, warned that "to avoid the appearance of impropriety, it helps both the public and the judge to know the guidelines”. Echoing the sentiments of other leaders of the American legal community, including Professor Philip Kurland, and the late United States Supreme Court Justice Tom Clark, Justice Goldberg went on to say, "Our Judges are men, not gods, and like all of us, they can benefit greatly from having some ground rules against which to measure their conduct * * * particularly * * * in this area of avoiding even the appearance of impropriety” (Nonjudicial Activities of Supreme Court Justices: Hearings on S 1097 and S 2109 Before the Subcommittee on Separation of Powers of the Senate Comm on the Judiciary, 91st Cong, 1st Sess [1969], pp 159, 165, 175, 185).

Inflexible enforcement of a vague standard of conduct brings untoward results. Regard the nature of the criticized appointments which were the subject matter of this proceeding. They did not go to the quality of justice the petitioner was dispensing. They were not part of the Judge’s decisional function at all. Rather, they were made incidental to an administrative chore that could as well, if court organization had provided for it, have been handled by a nonjudicial functionary operating on a management level pursuant to well-defined procedures. But that was not the pattern of court administration which prevailed throughout the State when the petitioner first came on the Bench, nor when he made the appointments in question, nor, for that matter, when he retired.

Furthermore, it is agreed that here there was no finding of nepotism, overt or concealed. Nor, tracking the canons, code and rules set out in the majority opinion, is there any question of the "probity and impartiality” or "character and fitness” of the Justice’s appointees. It is also not claimed that he permitted "his appointments to be controlled by others than himself’, that they were "unnecessary”, that he approved compensation "beyond the fair value of services rendered” or that he had "recommended” the appointment of his son "to another judge serving in the same court”. I respectfully suggest, therefore, that the history of nepotism from the Han dynasty to the present, while interesting and useful as background, does not go to the heart of the issue in this case. And the language quoted by the majority from Meinhard v Salmon is hardly apropos; the words there were spoken in a context in which, to paraphrase Cardozo rhetoric, a private interest actually collided with that of a fiduciary and not one in which it only appeared or was imagined to have done so (Cardozo, The Growth of the Law, Yale U Press, 96).

True, "new times and new manners may call for new standards and new rules” (Cardozo, The Nature of the Judicial Process [1921 ed], p 88), but with their adoption should come fair notice and an opportunity to accommodate to the change, not precipitous implementation of a heretofore uncharted standard in an unexpected context. So, when the seminal model for our State’s Code of Judicial Conduct was first approved by the American Bar Association in 1972, it was thought wise and fair to create a special committee to promote awareness of its existence (Martineau, Enforcement of the Code of Judicial Conduct, 1972 Utah L Rev 410, 417-418; see, also, Bray, The Problems of Sanctions, U of Chi Law School Conference on Judicial Ethics, Conference Series, No. 19 [1965], p 42). In contrast, to apply standards of today to judge the conduct of yesterday is of a kind with ex post facto statutes (see, generally, Marks v United States, 430 US 188; Bouie v City of Columbia, 378 US 347).

Understandably, no Judge can respond with less than pride to the flattering proposition that more may be expected of Judges than of ordinary mortals. It would be regrettable in the extreme, however, if we were driven to prove this by stripping members of oúr judiciary of the right they share with all people to be judged fairly. And it would be unfortunate to mistake an unwillingness to accede to a denial of this right as a tolerance of judicial misconduct whenever it truly exists.

Finally, it seems to me that appearance alone, in the main because it is so vague and unmapped, should not be permitted to reach out in disregard of all other considerations. Appearance, of course, is of moment only as suspicion attaches to an act. We like to think that no longer is condemnation to be meted out on mere suspicion. But "When we deal with what the public thinks, we must be careful not to accept the view of the most cynical as the true voice of the public, lest we accept a lack of faith in our institutions as a categorical basis for restricting otherwise quite ethical conduct” (International Electronics Corp. v Flanzer, 527 F2d 1288, 1294 [2d Cir]).

For all these reasons, I would vote no sanction.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler concur in Per Curiam opinion; Judge Fuchsberg dissents and votes to reject the determined sanction and impose no sanction, in a separate opinion; Judge Meyer taking no part.

Determined sanction accepted, without costs.

      . We observe that the commission did not discretely identify its findings of fact and conclusions of law as is contemplated by the statute (Judiciary Law, § 44, subd 7). Instead there is but a blanket characterization of the prose paragraphs of the determination — "The foregoing constitutes the findings of fact and conclusions of law required by Judiciary Law, § 44, subdivision 7.” Additionally, the cryptic statement, "Insofar as they are not inconsistent with the foregoing, the Commission accepts the findings of fact set forth in the Referee’s report”, although suggesting departure to some extent from the findings made by the Referee, is ambiguous and fails to reveal in what respect the commission differed with the Referee. In another case the failure of the commission to follow the procedure contemplated by the statute might significantly impair our review of the commission’s action.
      We also take note that the documents by which petitioner was notified of the determination of the commission and his request for review by the Court of Appeals are a part of the record in this proceeding.

      . Nepotism was a custom in the Han dynasty (4 Encyclopedia Brittannica, 310b) and often respected in the philosophies of the Middle East as reflecting a praiseworthy sense of family loyalty (16 Collier’s Encyclopedia, 162 d). In the western world, however, where it came to prominence as a practice of papal authority commencing with Pope Adrian I in the eighth century and reached its zenith during the Renaissance, it was repeatedly condemned (e.g., Dante, Inferno, 19.31, 19.52-81, 27.85-129; Petrarch, Epistulae sine nomine 11, ed P Piur, Petrarcas Buch ohne Ñamen und die pfipstliche Kurie [Halle, 1925]; G. H. Hist Cardinals II, 1.116 [1670] — "Ministers that buy the favour of the Nepotisme, do revive * * * a new Neronisme of Tyranny”). The church itself ultimately took steps to impede it through papal bull (Pope Pius V Admonet nos [1567]) and constitution (Romanum decet pontificem [1692]). More generally, it has been regarded as a form of misuse of authority, associated with corruption (11 International Encyclopedia of Social Sciences, 275).

      . (Forty-Seventh Annual Meeting of the American Bar Association, Philadelphia, Pennsylvania, July 9, 1924 [49 ABA Reports 764].)

       The Judicial Conference indicates there are well over 3,500 Judges in New York State ranging all the way from Judge of the Court of Appeals to Justice of a Town or Village Court. Many of these, in turn, serve in separate county or city subdivisions of our court system often hundreds of miles from each other. I do not deem it necessary, for the purposes of this case, to speculate as to whether the rule pronounced by the court today is to prohibit a judicial appointment of anyone with a filial relation to any other Judge in the State whatsoever or only to those within certain geographical, jurisdictional or administrative limits. For instance, must a Supreme Court Justice in Suffolk County refuse to appoint a lawyer because one of the latter’s parents is a local Justice in a town in Erie County? (See 22d Annual Report of the Administrative Board of the Judicial Conference.)


source: Caselaw Access Project

author: Gabrielli, J.

license: Public Domain

text:
    Mohonk Trust, Appellant, v Board of Assessors of Town of Gardiner, Respondent. (And Another Proceeding.)
    Argued May 29, 1979;
    decided July 3, 1979

      POINTS OF COUNSEL

      David Sive, William R. Ginsberg and Laurence B. Jones for appellant.
    I. Mohonk’s lands have been used exclusively for the tax-exempt purposes of section 421 (subd 1, par [a]) of the Real Property Tax Law. (Matter of Swedenborg Foundation v Lewisohn, 40 NY2d 87; Matter of American Bible Soc. v Lewisohn, 40 NY2d 78; Matter of Association of Bar of City of N. Y. v Lewisohn, 34 NY2d 143; Matter of Catskill Center for Conservation & Dev. v Voss, 63 AD2d 1091; Matter of De Forest, 147 Misc 82; Matter of North Manursing Wildlife Sanctuary v City of Rye, 52 Misc 2d 96, 28 AD2d 891; Matter of MacDowell, 217 NY 454; Matter of Rockefeller, 177 App Div 786; Matter of Church Home of Prot. Episcopal Church in City of Rochester v Wagner, 58 AD2d 972; Matter of American Mgt. Assns. v Assessor of Town of Madison, 63 AD2d 1102.) II. Mohonk is an "association”, within the meaning of that term as used in section 421 (subd 1, par [a]) of the Real Property Tax Law. (Matter of Pasch [Chemoleum Corp.], 26 Misc 2d 295, 13 AD2d 470.)

      Alfred Hafke for respondent.
    I. Section 421 (subd 1, par [a]) of the Real Property Tax Law should be strictly construed. (People v Brooklyn Gardens Apts., 283 NY 373; Larence-Smith School v City of New York, 166 Misc 856, 255 App Div 762, 280 NY 805; Matter of Community-General Hosp. of Greater Syracuse v Town of Onondaga, 80 Misc 2d 96.) II. Mohonk is not an "association” within the meaning of that term as used in the Real Property Tax Law (§ 421, subd 1, par [a]). (Matter of Graves, 171 NY 40.) III. Mohonk is not organized exclusively for the purposes set forth in the Real Property Tax Law (§ 421, subd 1, par [a]). (Good Will Club of Amsterdam v City of Amsterdam, 31 Misc 2d 1096; Crusade for Christ v Town of New Lebanon, 36 AD2d 247, 31 NY2d 765.) IV. Mohonk does not exclusively use its real property for carrying out thereupon one or more of the purposes set forth in the Real Property Tax Law (§ 421, subd 1, par [a]). (Matter of Bar of City of N. Y. v Lewisohn, 34 NY2d 143; Matter of Shrine of Our Lady of Martyrs v Board of Assessors of Town of Glen, 40 AD2d 75, 33 NY2d 713.) V. Mohonk does not use its lands for charitable and educational purposes, and for the moral and mental improvement of men, women and children as contemplated by the Real Property Tax Law (§ 421, subd 1, par [a]). (Matter of Swedenborg Foundation v Lewisohn, 40 NY2d 87.) VI. Mohonk is not entitled to a tax exemption because its lands are used extensively by a commercial enterprise.

      Thomas Thacher, Franklin E. Parker and Frederick Friedman for Natural Resources Defense Council, Inc., and others, amici curiae.

    I. The conservation by a charitable organization of its undeveloped land for public use is a use for charitable and educational purposes within the meaning of section 421 of the Real Property Tax Law, and the tax-exempt status of such land is not forfeited by virtue of its recreational use. (Matter of Association of Bar of City of N. Y. v Lewisohn, 34 NY2d 143; People ex rel. Watchtower Bible & Tract Soc. v Haring, 8 NY2d 350; Matter of Rockefeller, 177 App Div 786, 223 NY 563; Ould v Washington Hosp., 95 US 303; Matter of Swedenborg Foundation v Lewisohn, 40 NY2d 87; Matter of Mergentime, 129 App Div 367, 195 NY 572; Matter of Guerin [New Opera Co. — Corsi], 298 NY 46; People ex rel. Untermyer v McGregor, 295 NY 237; Harvey School v Town of Bedford, 34 AD2d 965.) II. Laws conferring exemptions from taxation for charitable organizations or organizations providing charitable benefits should be liberally construed. (Helvering v Bliss, 293 US 144; Passaic United Hebrew Burial Assn. v United States, 216 F Supp 500; Seasongood v Commissioner of Internal Revenue, 227 F2d 907; Bohemian Gymnastic Assn. Sokol of City of N. Y. v Higgins, 147 F2d 774; Metropolitan Detroit Area Hosp. Servs. v United States, 445 F Supp 857; American Inst. for Economic Research v United States, 302 F2d 934;
      Association Benefit for Colored Orphans v Mayor, 104 NY 581; People ex rel. Mizpah Lodge No. 518, I. O. O. F. v Burke, 228 NY 245; People ex rel. Delta Kappa Epsilon Soc. v Lawler, 74 App Div 553, 179 NY 535; People ex rel. Manhattan Fire Ins. Co. v Board of Comrs. of Taxes & Assessments in & for City & County of N. Y., 76 NY 64.)
   OPINION OF THE COURT

Gabrielli, J.

The Mohonk Trust has commenced these two proceedings pursuant to article 7 of the Real Property Tax Law seeking to challenge the assessment of real property taxes by respondent Town of Gardiner against some 1,801 acres of land within the town owned and operated by the Trust as a part of a wilderness area. Petitioner contends that the land is exempt from real property taxation by operation of section 421 (subd 1, par [a]) of the Real Property Tax Law. Petitioner’s arguments have been rejected by all courts below, and petitioner now appeals to this court as of right pursuant to CPLR 5601 (subd [a], par i). The appeal presents two issues of law calling for our consideration: first, whether property owned by a trust if otherwise qualified, is exempted by section 421 (subd 1, par [a]); and, second, whether the use of real property for environmental and conservation purposes as a wilderness area open to the public constitutes a charitable use exempt under the statute. We conclude that both questions must be answered in the affirmative, and thus the order appealed from should be reversed.

There exists no dispute as to the relevant facts. The Mo-honk Trust was created by an agreement dated February 26, 1963, between the donor, one Mabel Craven Smiley, and six named trustees. The main purposes of the Trust, as stated in the agreement, are "to devote and apply the [Trust] property * * * and the income to be derived therefrom exclusively for charitable, religious, scientific, literary, or educational purposes * * * provided, however, that no part of this Trust fund shall inure to the benefit of any private shareholder or individual”. The agreement also lists a number of secondary purposes, which are to be effectuated "in harmony with the foregoing”: "to effectively contribute to the public welfare in a significant fashion; to advance the scientific, educational, cultural arts; to revive the fundamental values in life that have become obscured; to re-emphasize the humanitarian concern for life and to promote the integration of spiritual values with physical needs and mental activities, in both man’s relationship to his physical environment and the interrelationship of humans”.

The Trust owns some 5,000 acres of undeveloped wilderness land located in the upper reaches of the Shawangunk Mountains. The land is heavily wooded with hardwood and evergreens and contains a variety of geological formations. It includes some of the most beautiful land in New York State. Most of this property was originally owned by members of the Smiley family, who sold the land to the Trust at considerably less than market value. The Smiley’s own a resort and hotel called Lake Mohonk, which is situated on some 2,500 acres adjacent to the Trust property. The creator of the Trust was a member of the Smiley family, as are several of the trustees.

The Trust is managed by a board of trustees which meets several times a year and which functions in the interim through several standing committees. It employs an administrator, a secretary, a senior ranger, several seasonal rangers, a part-time research assistant, and a part-time maintenance worker.

The Trust is supported in large part by contributions, and also derives some income from fees charged members of the public who use and enjoy the Trust lands. Most of the Trust’s income is used to maintain the Trust lands and to carry out a number of activities related to the lands; occasionally the Trust will also contribute funds to various charitable organizations. It is recognized as a tax-exempt organization by the Federal Government, and submits annual reports to the New York State Board of Social Welfare as a charitable organization.

The Trust lands are primarily used for a variety of environmental, conservation, educational and compatible recreational purposes. The land is maintained in its natural state in an attempt to preserve some part of our natural heritage for the enjoyment and benefit of present and future generations. The Trust has created a system of trails through the wilderness areas, and provides guide and informational services while at the same time maintaining and protecting the unique plant and animal life found on the Trust lands. A large number of schools and universities throughout the country have included field and study trips to the Trust lands as an essential part of their curricula in an assortment of fields including geology, biology, zoology, forestry, and ecology, as was indicated by the many expert witnesses who testified on petitioner’s behalf. The Trust itself maintains records on the development and growth of the plant and animal life in the area, and numerous scientific studies are conducted on Trust property. In addition, members of the public are allowed to use Trust land for activities such as rock climbing, backpacking, camping, birdwatching and nature hikes.

Members of the public are charged $1.25 per adult for use of the Trust facilities and revenue so derived is used to maintain the Trust lands. The Trust has entered into an agreement with Lake Mohonk, the adjoining resort, whereby guests at the hotel are allowed to use the Trust property in the same manner as members of the general public but without payment of any fee. Instead, the hotel itself pays the Trust an annual fee for extending this privilege to hotel guests. About 30,000 people enjoy the Trust lands each year, of whom approximately 15% are guests of the hotel.

Prior to 1974, Trust lands located in Gardiner were listed as exempt property on the tax rolls. In that year, the town for the first time began assessing real property taxes against that portion of the Trust lands located within the town. The Trust subsequently commenced these two proceedings, challenging the assessments for 1974 and 1975 in one and the assessment for 1976 in the second, on the ground that the land was entitled to an exemption. In the first proceeding, Supreme Court, Ulster County, concluded that the property was not entitled to an exemption because it was not used primarily for exempt purposes. In the second proceeding, Supreme Court, Ulster County, held that land owned by a trust is never entitled to an exemption pursuant to section 421 of the Real Property Tax Law because that section does not speak of trusts. The two proceedings were joined on appeal to the Appellate Division, and that court affirmed both judgments on the opinion at the Supreme Court in the first proceeding, over a dissent by one Justice. There must be a reversal.

Section 421 (subd 1, par [a]) of the Real Property Tax Law provides an absolute exemption from real property tax for "[r]eal property owned by a corporation or association organized or conducted exclusively for religious, charitable, hospital, educational, moral or mental improvement of men, women or children or cemetery purposes, or for two or more such purposes, and used exclusively for carrying out thereupon one or more of such purposes”. To qualify for exemption under this statute, the property must be owned by a nonprofit "corporation or association” (see Real Property Tax Law, § 421, subd 1, pars [a], [d]), that corporation or association must be "organized or conducted exclusively” for one of the exempt purposes listed in the statute, and the land itself must be used "exclusively” for such purposes.

The first issue presented on this appeal is whether a trust may be a "corporation or association” within the meaning of the statute, for if it cannot, property owned by a trust is never entitled to an exemption by this statute. The town contends that a trust is neither a corporation nor an association, and is thus not entitled to an exemption. We disagree. Whatever the meaning of the term "corporation or association” in another context, the phrase has long been understood in tax exemption statutes of this sort (see, e.g., L 1896, ch 908) simply to indicate that the particular organization granted the exemption need not be incorporated. Although the word "corporation” is strictly defined in the law, the word "association” is a broad term which may be used to include a wide assortment of differing organizational structures including trusts, depending on the context. Thus, in Matter of Graves (171 NY 40, 46-47), we interpreted a similarly worded statute granting a transfer tax exemption to "real property of a corporation or association organized exclusively” for certain public purposes, as providing such an exemption to property owned by a trust. Subsequently, in People ex rel. Untermyer v McGregor (295 NY 237, 244) we concluded that subdivision 6 of section 4 of the Tax Law, the immediate predecessor to section 421 of the Real Property Tax Law, did provide an exemption to lands owned by a trust. We see no reason to reach a different result today, and conclude that a trust is an association as that term is used in section 421.

We turn now to the question whether the Mohonk Trust lands qualify for a tax exemption under the statute. Initially, we note that "while exemption statutes should be construed strictly against the taxpayer seeking the benefit of the exemption, an interpretation so literal and narrow that it defeats the exemption’s settled purpose is to be avoided. * * * Accordingly, 'exclusive’, as used in the context of these exemption statutes, has been held to connote 'principal’ or 'primary’. * * * Hence, purposes and uses merely auxiliary or incidental to the main and exempt purpose and use will not defeat the exemption” (Matter of Association of Bar of City of N. Y. v Lewisohn, 34 NY2d 143, 153).

To determine whether a particular piece of land is exempt under the statute it is necessary to determine first whether the owner of the land is "organized or conducted” exclusively, or primarily, for an exempt purpose. If the answer to that inquiry is in the affirmative, it then becomes necessary to determine whether the particular land for which the exemption is sought is itself primarily used for an exempt purpose. Until very recently these two inquiries were always separate, for until 1971 an organization qualified for an exemption only if it was "organized” for an exempt purpose (see L 1971, ch 414, § 2). Under that statutory language the determination of an organization’s purpose was in large part limited to an examination of the documents by which it was created and which regulated its organizational structure and powers (see Matter of De Peyster, 210 NY 216). Hence, it was irrelevant that a particular organization created under a broad charter or agreement providing both exempt and nonexempt purposes might in fact have limited its activities solely to exempt purposes. Now, however, an organization may be entitled to an exemption if it is either "organized or conducted” primarily for an exempt purpose or purposes. Hence, the determination of an organization’s primary purpose may turn upon the extent to which it pursues the various purposes for which it was created, and is not necessarily dependent solely upon the language of the document pursuant to which the organization operates.

Applying these principles to the instant appeal, we first examine the agreement by which the Mohonk Trust was created. The primary purposes listed therein are "charitable, religious, scientific, literary, or educational”. Additionally, the agreement states a variety of subsidiary purposes centering around the welfare of the public. In fact, however, the Trust has deemed it best to attempt to fulfill its purposes primarily by the operation of the Trust lands in the manner described above and by means of its various related operations. Thus, in this case the use of the lands reflects the primary purpose of the organization. It is plain that the actual primary purpose of the Trust is the preservation of wilderness areas for the benefit of the public. Incidental to this use and this purpose are a variety of related activities, many of which are educational or scientific in nature. The question before us is whether such uses are for "religious, charitable, hospital, educational, moral or mental improvement of men, women or children or cemetery purposes” (Real Property Tax Law, § 421, subd 1, par [a]). Clearly, the Trust land is not used for religious, hospital or cemetery purposes. We conclude that it is, however, used primarily for an assortment of "charitable * * * educational, [and] moral improvement of men, women or children” purposes, for we see no reason why these categories should not encompass lands used for environmental and conservation purposes which are necessary to the public good and which are open to and enjoyed by the public (see People ex rel. Untermyer v McGregor, 295 NY 237, supra).

It is, of course, within the power of the Legislature to establish and to modify tax exemptions, subject only to constitutional limitations. Thus, where the Legislature has chosen to create only limited exemptions for particular activities which might otherwise be deemed to fall within the somewhat broader absolute exemptions provided by section 421 (subd 1, par [a]), those distinctions must be given full effect by the courts (see Matter of American Bible Soc. v Lewisohn, 40 NY2d 78; Matter of Swedenborg Foundation v Lewisohn, 40 NY2d 87). As it is, however, the Legislature has not seen fit to remove environmental and conservation purposes from the broad category of charitable, educational, or mental or moral improvement of man purposes within which they so neatly fit. Hence, we conclude that such purposes are exempt and thus land used for such purposes by an exempt organization is not subject to the property tax.

Finally, we reject the suggestion that simply because the Smiley family may receive some benefits by reason of the fact that their hotel is adjacent to the Trust property, the Trust thereby is converted into a commercial organization. The Trust itself is plainly a nonprofit organization which serves an essential public need. Hence, in the absence of any indication that the Trust is merely a device used to shield a profit-seeking enterprise, which is not the case here, the fact that nearby landowners in fact do benefit by the existence and operation of the Trust is irrelevant to its tax-exempt status.

Accordingly, the order appealed from should be reversed, with costs, and the petitions should be granted.

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

Order reversed, etc.

      . We note that the Trust also owns land in New Paltz, Marbletown, Rosendale, and Rochester. It would appear, however, that those local governments consider the Trust property to be exempt, and it is only Gardiner which has assessed real property taxes against Trust lands.

      . Section 421 (subd 1, par [a]) of the Real Property Tax Law implements and is, in part, mandated by section 1 of article XVI of the New York Constitution, which provides in pertinent part that "[e]xemptions may be altered or repealed except those exempting real or personal property used exclusively for religious, educational or charitable purposes as defined by law and owned by any corporation or association organized or conducted exclusively for one or more of such purposes and not operating for profit”. To this class of fundamental purposes entitled to an absolute tax exemption, the Legislature has added absolute exemptions for "hospital * * * moral or mental improvement of men, women or children or cemetery purposes”. (Real Property Tax Law, § 421, subd 1, par [a].)
      There also exists a form of "local option” exemption for land owned by nonprofit organizations organized or conducted for "bible, tract, benevolent, missionary, infirmary, public playground, scientific, literary, bar association, medical society, library, patriotic or historical purposes [or], for the enforcement of laws relating to children or animals” and which is used exclusively for such purposes (Real Property Tax Law, § 421, subd 1, par [b]). Unlike the exemptions provided by section 421 (subd 1, par [a]), the exemptions provided by section 421 (subd 1, par [b]) are not absolute and may be abrogated within a local governmental unit by enactment of an appropriate local law or ordinance (see Matter of American Bible Soc. v Lewisohn, 40 NY2d 78, 84-85).
      The record in this appeal does not indicate whether the Town of Gardiner has adopted a local law abrogating any of the exemptions provided by section 421 (subd 1, par [b]). Nor have the parties contended that the Trust property might fall within one of the exemptions created by that section. Hence, we limit our discussion to a consideration of the applicability of section 421 (subd 1, par [a]) to the Trust lands.


author: Fuchsberg, J.

text:
    In the Matter of Harold W. Martin et al., Respondents, v William J. Ronan, as Chairman of the Manhattan and Bronx Surface Transit Operating Authority, et al., Respondents, and Leon J. Robinson et al., Intervenors-Appellants.
    Argued May 29, 1979;
    decided July 3, 1979

      POINTS OF COUNSEL

      Jerome Tauber and I. Philip Sipser for Leon J. Robinson and others, intervenors-appellants.
    I. A public employee may not have an appointment vacated as the result of a challenge to the fairness of a promotional examination if he was not made a party to the proceeding in which the examination was set aside. (Kirkland v Board of Educ., 49 AD2d 693; Matter of Kelleher v Poston, 33 AD2d 535; Matter of Skliar v Board of

      Educ., 45 AD2d 1012; Matter of Dreyfuss v Board of Educ., 42 AD2d 845; Matter of Crystal v Board of Educ., 87 Misc 2d 632; Matter of Cichy v Town of Cheektowaga, 61 Misc 2d 88; Matter of Butler v Hayduk, 37 NY2d 497; Matter of Greenspan v O’Rourke, 27 NY2d 846; Matter of Cappellazzi v Toto, 59 AD2d 599, 41 NY2d 1050; Matter of Biscone v Scaringe, 59 AD2d 794, 42 NY2d 1075.) II. Intervenors’ appointments may not be vacated without specific findings of fact that intervenors were advantaged by any alleged unfairness in the conduct of the oral examination. (Matter of Bruns v Suffolk County Civ. Serv. Comm., 56 Misc 2d 925; Matter of Mitchell v Poston, 41 AD2d 886; Matter of Schulman v Department of Civ. Serv. of State of N. Y., 82 Misc 2d 1084.) III. The oral examination was fair and competitive. (Matter of Booker v Reavy, 281 NY 318; People ex rel. Moriarty v Creelman, 206 NY 570; Matter of Metzger v Nassau County Civ. Serv. Comm., 54 AD2d 565; Mills v Bahou, 55 AD2d 57; Matter of Maurizio v Hoberman, 39 AD2d 524; Matter of Objectant No. 37801 v New York State Dept. of Civ. Serv., 33 AD2d 811; Matter of Bobrowich v Poston, 52 AD2d 976; Matter of Cowan v Reavy, 283 NY 232; Matter of Sloat v Board of Examiners of Bd. of Educ., 274 NY 367.)

      Conrad J. Lynn for Robert Fletcher, intervenor-appellant.
    I. The intervenor is a necessary party. (Kirkland v Board of Educ., 49 AD2d 693; Board of Regents v Roth, 408 US 564.) II. The court was required to make intervenors parties to the action. (Challette, Inc. v Town of Brookhaven, 43 Misc 2d 264.) III. Intervenor has been deprived of his property right without due process of law. (Adelman v Adelman, 58 Misc 2d 803.)

      Ronald H. Shechtman and Murray A. Gordon for Harold W. Martin and others, petitioners-respondents.
    I. Special Term properly denied intervenors’ motion to renew, reargue and vacate. (Matter of Lezette v Board of Educ., 35 NY2d 272; Matter of Skliar v Board of Educ., 45 AD2d 1012; Kirkland v Board of Educ., 49 AD2d 693; Matter of Dreyfuss v Board of Educ., 42 AD2d 845; Matter of Crystal v Board of Educ., 87 Misc 2d 632; Matter of Spinney Hill Collision v Caso, 56 AD2d 655; Kirkland v New York State Dept. of Correctional Servs., 520 F2d 420; Aquavella v Harvey, 40 AD2d 940; Schroeder v City of New York, 371 US 208; Mullane v Central Hanover Trust Co., 339 US 306.) II. Special Term properly ruled that the examination was unfair and noncompetitive and that no candidate obtained any vested rights therefrom. (Matter of Cohen v Fields, 298 NY 235; Matter of Nelson v Board of Examiners of Bd. of Educ., 21 NY2d 408; Matter of Meyer v Kaplan, 22 AD2d 449, 16 NY2d 693; Matter of Abo v Krone, 55 Misc 2d 884; Matter of Bucalo v Kaplan, 19 AD2d 478; Matter of Donohue v Cornelius, 45 Misc 2d 42, 22 AD2d 1000; Matter of Fitzgerald v Conway, 195 Misc 397, 275 App Div 205; Matter of Katz v Hoberman, 28 NY2d 530, 970; Matter of Elliott v Hoberman, 61 Misc 2d 411.) III. The relief afforded by judgment of Special Term is appropriate and should be affirmed. (Duquin v Colucci, 60 AD2d 995; Matter of Marcus v Kaplan, 20 AD2d 841; Matter of Damino v County of Nassau, 56 AD2d 930, 42 NY2d 823; Matter of Cash v Bates, 301 NY 258.)
   OPINION OF THE COURT

Fuchsberg, J.

In this appeal, intervenor-appellants, 21 incumbents who successfully competed for and were promoted to the position of senior dispatcher by the Manhattan and Bronx Surface Transit Operating Authority (MABSTOA) in July, 1973, seek to intervene and vacate a judgment which had annulled the results of the competitive examination on which their appointments were based.

In instituting this article 78 proceeding against MABSTOA to challenge the promotional examination, petitioner-respondents, unsuccessful candidates, sought to vacate the appointments made in reliance thereon chiefly on the grounds that the oral portion of the test was not fair and competitive. The claim of unfairness had two main prongs. One was that an oral examination was administered to separate groups of candidates on two successive weekends between which some of the questions became available to those who were to be interrogated at the second session, thus unfairly advantaging the latter group. The second was that the grading was not governed by objective standards. At the commencement of the proceeding, appellants were not named as parties and, although it appears that some of them had notice of its pendency through informal channels, none were ever formally notified that the outcome of the suit could render their appointments forfeit.

Special Term, in large measure adopting the recommendations of a Special Referee it had appointed to hear and report, found the test unfair. Accordingly, on August 5, 1976, the court vacated and annulled the eligibility list and ordered MABSTOA to conduct a new competitive examination. At this point, the incumbents moved Special Term for an order permitting them, in effect, to intervene in the proceedings, to vacate the judgment and, upon such vacatur, to participate on the merits. The court, while permitting intervention, did so only to the extent of allowing appellants to participate in the appeal from the judgment; it otherwise denied the motion. The Appellate Division affirmed the August 5 judgment and dismissed as academic the appeal from the order limiting the motion to intervene. For the reasons that follow, we believe the relief for which the appellants moved should have been granted in toto.

We begin by noting that, while our intervention and joinder practice is now delineated by statutes of relatively recent origin (see Twelfth Ann Report of NY Judicial Council, 1946, pp 218-232; 2 Weinstein-Korn-Miller, NY Civ Prac, par 1001.01), even before the turn of the last century our court fully recognized that the fundamental purpose of these devices was not merely to provide, a procedural convenience but to implement a requisite of due process — the opportunity to be heard before one’s rights or interests are adversely affected (see First Nat. Bank v Shuler, 153 NY 163, 170; see, also, Mullane v Central Hanover Trust Co., 339 US 306, 314).

It is to serve both these ends that CPLR 1001 contemplates joinder of "Persons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action” (cf. CPLR 1012, subd [a], par 2). The appellants here fall clearly within the compass of this provision.

As the history of this rather prolonged litigation demonstrates, the would-be intervenors were adversely affected by their original nonjoinder. The interest they shared in the outcome of the proceeding easily could have transcended that of the named respondent, MABSTOA, who, not illogically, might have viewed itself as no more than a neutral stakeholder. The failure of MABSTOA to have joined in this appeal may be confirmation that that is precisely the self-image it in fact had of its role. Indeed, if MABSTOA, which employed both petitioners and intervenors, does not prevail in this proceeding, the new examination it would be called upon to give would be no more than an action it was bound to undertake periodically in any event.

Moreover, quasi-governmental bodies may be motivated by considerations dehors those relating to the merits of a particular case. For example, such a body may prefer to take the long view and wait to press its claims in a controversy presenting a stronger factual setting and thus avoid an adverse precedent. And, resource constraints and even political considerations may govern the decision whether to litigate and how far. (Cf. Matter of Butler v Hayduk, 37 NY2d 497, 499; Shapiro, Some Thoughts on Intervention Before Courts, Agencies and Arbitrators, 81 Harv L Rev 721, 745-748.) On the other hand, the incentive to the potential intervenors — the loss of their promotions, nearly three years old by the time Special Term declared the eligibility list invalid, and with it the accompanying increase in earnings — insured that their stance would be adversarial in every respect.

That several of the intervenors testified at the hearing before the referee in their capacities as officers of the ethnic societies that had given refresher courses during the week which elapsed between the two examinations, and that one intervenor even submitted an affidavit in opposition to the petition, cannot be said to have been an adequate substitute for the opportunity they would have had to defend their interests as full-fledged parties. By no means was this participation, either as affiant or as witnesses called by another party, sufficient to protect their interests. Without their right, for instance, to present independent evidence or to cross-examine witnesses, the incumbents were precluded from showing what indeed they had to show: that whatever irregularities may have occurred during the administering of the examination neither had any discernible effect on the test results nor caused any personal advantage to accrue to any of the intervenors. Failure to grant so much of appellants’ motion to intervene as would have permitted their participation in a de novo consideration of the merits therefore foreclosed a critical factual perspective from emerging (cf. Shapiro, Some Thoughts on Intervention Before Courts, Agencies and Arbitrators, 81 Harv L Rev 721, 740, 743, 748).

Finally, we note that, in situations analogous to that presented here, joinder has been required of parties whose positions would be forfeited upon the success of an action or proceeding brought by another (see Matter of Greenspan v O’Rourke, 27 NY2d 846 [in proceeding to invalidate election of officers in political party, joinder required of successful officers]; Matter of Marcus v Kaplan, 20 AD2d 841 [in proceeding to review commission’s revision of examination results, joinder required of one appointed on basis of test]; Matter of Skliar v Board of Educ., 45 AD2d 1012 [joinder required of incumbent teacher who would be displaced]; Kirkland v Board of Educ., 49 AD2d 693, 694 [in proceeding to challenge appointment of school board official, joinder required of incumbent appointee; abuse of discretion not to permit intervention]).

We thus conclude that, since the appellants were not joined as parties ab initio, in order to effect a complete resolution of the controversy here, as well as to safeguard the appellants’ stake as necessary parties, the motion to intervene should have been granted in all respects.

For all these reasons, the order of the Appellate Division should be reversed and the matter remitted to the Supreme Court, New York County, for further proceedings in accordance with this opinion.

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

Order reversed, with costs, and the matter remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein.

      . MABSTOA, a public benefit corporation and a subsidiary of the New York City Transit Authority, was organized pursuant to section 1203-a of the Public Authorities Law, which specifically provides that its employees shall not acquire civil service status (§ 1203, subd 3, par b). However, MABSTOA is bound by its own rules and regulations, which independently provide for appointment and promotion pursuant to fair and competitive examinations.

      . On a previous appeal, this court held that the article 78 proceeding was timely commenced by petitioners (44 NY2d 374).


author: Chief Judge Cooke.

text:
    The People of the State of New York, Respondent, v Edward Edwards, Appellant.
    Argued May 29, 1979;
    decided July 3, 1979

      POINTS OF COUNSEL

      Philip L. Weinstein and William E. Hellerstein for appellant.
    The trial court erred when it admitted as part of the res gestae and a spontaneous declaration a statement made by the deceased identifying her attacker, in response to a series of questions. (People v Caviness, 38 NY2d 227; Waterman v Whitney, 11 NY 157; People v Del Vermo, 192 NY 470; Greener v General Elec. Co., 209 NY 135; People v Sprague, 217 NY 373; People v Arnold, 41 AD2d 573, 34 NY2d 548; People v Williams, 28 AD2d 819.)

      Robert M. Morgenthau, District Attorney (John O’Donnell, Robert M. Pitler and Brian Rosner of counsel), for respondent.
    The trial court correctly determined that a murder victim’s statements, made while and immediately after the victim was being repeatedly stabbed, were spontaneous declarations made without time to reflect or fabricate even though some of the statements were made in response to questions which a passerby asked when he heard the victim moaning and screaming for help from behind a closed door. (People v Caviness, 38 NY2d 227; People v Del Vermo, 192 NY 470; Greener v General Elec. Co., 209 NY 135; People v Arnold, 34 NY2d 548; Saturno v Yanow, 58 AD2d 968; Scheir v Quirin, 77 App Div 624, 177 NY 568; People v Sprague, 217 NY 373.)
   OPINION OF THE COURT

Chief Judge Cooke.

Defendant was convicted, after a jury trial, of murder in the second degree (Penal Law, § 125.25), in connection with the brutal stabbing of 72-year-old Edna Boose. On appeal, he maintains that the admission into evidence of statements, identifying him as the attacker, made by Mrs. Boose while and immediately after being stabbed constituted reversible error. The order of the Appellate Division upholding the conviction should be affirmed. The statements of Mrs. Boose were properly received in evidence as spontaneous declarations, notwithstanding that some of them were made in response to questions posed by a person coming to her aid.

The victim resided with her husband in a fourth floor apartment in Manhattan. Defendant, who had previously resided with the couple, was well known in the neighborhood. To support himself, defendant sold watermelon slices in front of his brother Rudy’s store on the ground floor of the apartment building and used a knife and an ice pick in his business.

On the morning of the crime, defendant was observed in the lobby of the building. One hour later as Charles Simpson, Mrs. Boose’s brother and next door neighbor, was returning to his apartment, he heard muffled screams emanating from his sister’s rooms. Drawn by the sound of his sister’s voice, Simpson approached her apartment door and inquired, "What is the matter, Edna?”. A voice he identified as that of his sister cried out, "Please help me get out. Somebody get me out.” "Mr. Eddie is trying to kill me.” Simpson shouted "What?” and the deceased screamed, "Eddie, Rudy’s brother downstairs.” As Mrs. Boose screamed for assistance, Simpson pushed on the door causing it to open slightly. However, it was immediately slammed shut and locked.

Simpson repaired to his own apartment to drop off some packages and returned to his sister’s aid. Finally, after strenuous effort, he forced the apartment door open. Simpson quickly pulled his sister, an ice pick without its handle protruding from her chest, through the apartment door. While being dragged into the hallway, Mrs. Boose told her brother, "Don’t go in there.” Simpson asked, "What is the matter?” and the deceased replied, "Eddie will kill you.” Defendant was observed hurrying down the fire escape immediately after the crime. A knife and an ice pick handle were found in a flower pot on the fire escape.

At trial, defendant objected to the introduction of the statements of Mrs. Boose on the ground that they constituted inadmissible hearsay. The hearsay rule, of course, forbids the use of an assertion made out of court as testimony to the truth of the fact asserted (Richardson, Evidence [10th ed— Prince], § 201; People v Settles, 46 NY2d 154, 166). However, exceptions to this general exclusion have arisen in instances where there is a genuine necessity for the evidence and the circumstances surrounding the out-of-court statement assure its trustworthiness. Statements admitted pursuant to these exceptions derive their vitality not from the veracity of the declarant, but rather from their relation to the transaction from which they spring (see 6 Wigmore, Evidence [3d ed], § 1747).

One of the better-known exceptions to the injunction against the reception of hearsay testimony permits the introduction of a spontaneous declaration or excited utterancemade contemporaneously or immediately after a startling event — which asserts the circumstances of that occasion as observed by the declarant (see People v Caviness, 38 NY2d 227, 231-232; People v Marks, 6 NY2d 67, 71-72, cert den 362 US 912; Fisch, New York Evidence [2d ed], § 1000). Underlying this exception is the assumption that a person under the influence of the excitement precipitated by an external startling event will lack the reflective capacity essential for fabrication and, accordingly, any utterance he makes will be spontaneous and trustworthy (but see Hutchins & Slesinger, Some Observations on the Law of Evidence: Spontaneous Exclamations, 28 Col L Rev 432, 437). Since the utterance is made as a direct result of sensory perception during that brief period when considerations of self-interest cannot be immediately brought to bear, the declaration may be admitted into evidence as expressing the true belief of the declarant as to the facts observed (People v Marks, supra; Richardson, Evidence [10th ed — Prince], § 281).

The admissibility of an excited utterance is entrusted in the first instance to the trial court. In making that determination, the court must ascertain whether, at the time the utterance was made, the declarant was under the stress of excitement caused by an external event sufficient to still his reflective faculties, thereby preventing opportunity for deliberation which might lead the declarant to be untruthful. The court must assess not only the nature of the startling event and the amount of time which has elapsed between the occurrence and the statement, but also the activities of the declarant in the interim to ascertain if there was significant opportunity to deviate from the truth. Above all, the decisive factor is whether the surrounding circumstances reasonably justify the conclusion that the remarks were not made under the impetus of studied reflection.

Tested by these criteria, we find no error in the admission of the statements of Mrs. Boose. The first set of statements — in which defendant was identified as her attacker — obviously were made when the victim was under the excitement and shock of being repeatedly stabbed in the chest with an ice pick. The second set of statements, confirming the victim’s identification of defendant as her killer, followed hard upon the same event — a vicious stabbing — certain to produce the utmost in excitement and shock, thus ensuring the spontaneity of the utterance. Evidence, independent of the statements themselves, verified that the startling events had actually occurred. And, while these latter declarations were uttered after the attack had subsided, the declaration need not be coincident in time with the startling event (see Scheir v Quirin, 77 App Div 624, affd 177 NY 568; United States v Napier, 518 F2d 316, cert den 423 US 895). Where, as in the present case, the statements were uttered when emotional excitement continues to dominate and the reflective powers are still in abeyance, the declaration is properly admissible.

Defendant does not argue that Mrs. Boose was never under the sway of a startling event or that her excitement was dissipated at the time the second set of statements were made. Rather, he maintains that since the victim’s identification of her attacker was prompted by her brother asking her "What is the matter?”, the utterance was rendered distinctly narrative and therefore inadmissible. Case law in this State on this point is in conflict. Thus, in People v Del Vermo (192 NY 470, supra), a murder victim’s identification of defendant as his killer was admitted as a spontaneous declaration although uttered in response to a question (id., pp 487-488). Subsequent decisions, however, suggest that statements, even though made under the influence of nervous excitement, could not qualify as spontaneous declarations where brought forth by inquiries, however innocuous (Greener v General Elec. Co., 209 NY 135, 138; People v Sprague, 217 NY 373, 379).

It is unreasonable, however, to prohibit admission of these utterances in every instance in which they were prompted by a simple inquiry (see People v Arnold, 34 NY2d 548, 549; Richardson, Evidence [10th ed — Prince], § 283). The natural reaction of any person arriving to aid one exposed to a startling event is to inquire "What happened?”. To pivot the admissibility of a subsequent statement, however spontaneous, on the question of whether it was prompted by an equally spontaneous inquiry would serve no useful purpose. Instead, this is merely one of the factors to be weighed in determining whether the surrounding circumstances demonstrate that the utterance was instinctive. To be sure, if the question propounded or the identity of the questioner may suggest or influence the response of if it is asked an appreciable length of time after the startling event, the declarations might very well lack the inherent reliability basic to the rule. But where, as here, the responses are uttered under the stress of nervous excitement without opportunity for reasoned reflection, they should be submitted to the trier of fact. To the extent that Greener v General Elec. Co. (supra) and People v Sprague (supra) might be read to suggest a contrary result, they are disapproved.

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

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed.

      . The development of this exception is marked by its constantly changing nomenclature. Initially, referred to as part of the res gestae (e.g., Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 9; Handel v New York R. T. Corp., 252 App Div 142, affd 277 NY 548), subsequent decisions differentiated between a true res gestae statement and a spontaneous declaration uttered in response to a startling event (e.g., People v Caviness, 38 NY2d 227-230; People v Del Vermo, 192 NY 470). Perhaps even more appropriate, however, is the term excited utterance, which has been adopted by the drafters of the Model Code of Evidence (rule 512) and the Federal Rules of Evidence (rule 803, subd [2]) (see, also, McCormick, Evidence [2d ed], § 297).

        . We note that the vast majority of jurisdictions that have reached this issue have held that the fact that an inquiry has prompted an excited utterance or spontaneous declaration is not the sole determinant of admissibility, but rather merely one factor bearing on spontaneity (see United States v Glenn, 473 F2d 191; State v Woolery, 93 Ariz 76; People v Costa, 40 Cal 2d 160; People v Kelley, 29 Ill 2d 53; Bosin v Oak Lodge Sanitary Dist., 251 Ore 554; Commonwealth v Banks, 454 Pa 401; Autry v State, 143 Tex Crim 252; State v Kwan, 174 Wash 528; Phifer v State, 64 Wis 2d 24).


author: Meyer, J.

text:
    The People of the State of New York, Appellant, v Clarence Hardy, Eddie Davis, Robert Lawson and Nathaniel Ficklin, Respondents.
    Argued June 8, 1979;
    decided July 9, 1979

      POINTS OF COUNSEL

      Lawrence T. Kurlander, District Attorney (Kenneth R.

      Fisher of counsel), for appellant.
    I. We request this court reverse the lower court’s determination that incorporation under the Not-For-Profit Corporation Law fully exempts the defendants, as officers or members thereof, from the licensing requirements of the Alcoholic Beverage Control Law. (Matter of New York State Liq. Auth. v Sutton Social Club, 93 Misc 2d 1024; Matter of Gaslight Club v State Liq. Auth., 18 AD2d 413.) II. Defendants were also charged with violations of section 44-11A of the Municipal Code of the City of Rochester. That section, which is founded in a theory of nuisance, seeks to limit disruptive conduct in public and quasi-public establishments. (People v Jones, 129 App Div 772, 191 NY 291, 195 NY 547; People v Vails, 43 NY2d 364; People v Cook, 42 NY2d 204; People v Jackson, 39 NY2d 64; People v Molineux, 168 NY 264; Foster v Zeeko, 540 F2d 1310; King v People, 83 NY 587.)

      George G. Roth for respondents.
    I. The information is insufficient and mandates a dismissal. (People v Zambounis, 251 NY 94; People v McGuire, 5 NY2d 523; People v Page, 77 Misc 2d 277; People v Santoro, 229 NY 277; People v Cianciulli, 59 Misc 2d 187.) II. Dismissal should be granted under CPL 30.30 (subd 1, par [b]). (People v Miller, 34 NY2d 336; People v Rodriguez, 45 AD2d 41; People v Coleman, 47 AD2d 578; People v Henderson, 72 Misc 2d 12; People v Faulkner, 81 Misc 2d 764, 54 AD2d 1141; Barker v Wingo, 407 US 514; People v Johnson, 38 NY2d 271; People v White, 32 NY2d 393; Dickey v Florida, 398 US 30.) III. The city ordinance is unconstitutional.
   OPINION OF THE COURT

Meyer, J.

Two issues are raised by the People’s appeal. First, is a private club, which is incorporated pursuant to State law as a nonprofit corporation and which sells liquor only to members, exempt from New York liquor license requirements? Second, are private clubs outside the scope of section 44-11A of the Municipal Code of the City of Rochester, which prohibits maintenance of a public resort at which the peace, comfort or decency of a neighborhood is disturbed? Both courts below answered these questions affirmatively. Defendants, of course, argue in support of the decisions below, but also urge that the Municipal Code of the City of Rochester provision is unconstitutionally vague, that they have been denied their right to a speedy trial, and that the informations are factually insufficient.

We reverse the lqwer courts and hold that under the Alcoholic Beverage Control Law private clubs must be licensed if they sell liquor, that section 44-11A of the Municipal Code of the City of Rochester is constitutional, and that whether a private club is a public resort within the meaning of the latter provision is, under the circumstances of this case, a question to be decided by the fact finder. For the reasons hereafter stated, we do not reach the speedy trial issue or the question whether the informations are factually sufficient.

The defendants, Clarence Hardy, Eddie Davis, Robert Lawson, and Nathaniel Ficklin, incorporated the Fellowmen Community Development Corporation. That corporation operated an establishment at 127 Pennsylvania Avenue, Rochester, New York, in which liquor was sold. On November 6, 1976, a police officer entered the premises and was asked whether he was a member of the club. Upon answering that he was not, the officer was told he could purchase a membership for a dollar which would be valid for a month. He did so, and while in the bar, he purchased two beers and two mixed drinks. On November 20, 1976, a different police officer observed that while defendants were in control of the premises, liquor was being sold and loud and abusive crowds gathered at the club in the early hours of the morning.

Defendants were subsequently arrested for selling liquor without a license in violation of subdivision 1 of section 100 (par [b]) of the Alcoholic Beverage Control Law, and for violating section 44-11A of the Municipal Code of the City of Rochester by keeping a place of public resort by which the peace, comfort or decency of its neighborhood was disturbed. Defendants moved to dismiss and the Rochester City Court granted the motion holding that neither the Alcoholic Beverage Control Law nor the city code applied to private clubs. On appeal the Monroe County Court affirmed in all respects, adding that in any event the informations would have to be dismissed for violation of CPL 30.30 (subd 1, par [b]) concerning speedy trial.

Clear from the language of the Alcoholic Beverage Control Law is the legislative intent that it apply to a club such as is here involved. Subdivision 1 of section 100 of the Alcoholic Beverage Control Law forbids a sale by any person of any alcoholic beverage without obtaining a license, section 3 (subd 22) defines "person” to include a corporation and section 3 (subd 28) defines "sale” as any transfer, exchange or barter in any manner or by any means whatsoever for a consideration. Moreover, "clubs” are defined in section 3 (subd 9) to include an organization of persons under the Not-For-Profit Corporation Law, section 106 (subd 8) expressly provides that "licensed clubs” may only sell alcoholic beverages to members or to guests accompanying them, section 66 fixes the annual fee for a club license, section 64 (subd 6) contains a specific reference to clubs in relation to the maintenance of restaurant service, and there is no exemption or other provision in the Alcoholic Beverage Control Law permitting sale by an unlicensed club.

The conclusion thus reached accords not only with the wording of the statute but with its purpose as well. The policies and regulations established by the Legislature and by the authority pursuant to authorization by the Legislature would quickly become meaningless if their requirements could be avoided.by simply incorporating as a private club (Matter of New York State Liq. Auth. v Sutton Social Club, 93 Misc 2d 1024, 1030). The courts below erred in dismissing so much of the information as was grounded upon subdivision 1 of section 100 of the Alcoholic Beverage Control Law.

It was likewise error to dismiss the information charging violation of the city code. Section 44-11A of that code provides in pertinent part that: "No person shall knowingly keep * * * any place of public resort by which the peace, comfort, or decency of a neighborhood is disturbed”, and section 44-1 defines "a place of public resort” to mean: "any place of any description where the broad class of persons who constitute the public has a right to go for frequent assemblies and shall include but not be limited to those places that are solely public in nature.” The question then is not whether the Fellowmen Community Development Corporation was organized as a private club but whether it was in fact being operated, through the indiscriminate sale of membership cards for a nominal fee to anyone who sought entry, as a place where the public had a right to go. There being nothing in the code expressly excluding a private club from its provisions, the issue whether it was kept as a "place of public resort” was one of fact rather than law and thus has not yet been determined in this case.

Defendants’ further contention that the city code provision is void for vagueness is without merit. The test of whether a law possesses the certainty and definiteness mandated by due process is whether the language of the statute would indicate to reasonable persons the nature of the conduct it proscribes (see, e.g., People v Firth, 3 NY2d 472, 474). The code provision here in question refers not to a person but to a neighborhood the peace, comfort or decency of which is disturbed and, therefore, clearly provides an objective rather than a subjective standard by which disturbance is to be measured. Were its language less clear in that respect it would, in any event, be construed to refer to conduct that would disturb substantially a reasonable man (People v Harvey, 307 NY 588). That part of the code provision in issue in this case essentially prohibits disturbance of the peace, or disorderly conduct. We have upheld such statutes against a vagueness challenge many times (see, e.g., People v Todaro, 26 NY2d 325; People v Thomas, 23 NY2d 659, remittitur amd 23 NY2d 805; People v Turner, 17 NY2d 829; People v Feiner, 300 NY 391; see, also, Disorderly Conduct — Vagueness, Ann., 12 ALR3d 1448).

There remain for consideration the issues of the sufficiency of the informations and whether defendants’ rights under CPL 30.30 (subd 1, par [b]) have been denied. We do not reach either issue on the present record. As to the sufficiency of the informations, the issue was not passed upon by the courts below and there appears, from the briefs at least, to be a substantial question, not answerable from the record before us, concerning whether defendants, other than defendant Lawson, were arraigned on only the information of November 20, 1976 or on the earlier information as well. As to the speedy trial question, it has never been properly raised (see CPL 170.45, 210.45) and, therefore, should not have been considered by the County Court. A defendant who desires to raise the issue whether there has been compliance with the speedy trial statute must do so formally rather than as an added argument in an appellate brief, so that the People will have sufficient opportunity to put their side of the question before the court (cf. People v Adams, 38 NY2d 605). While the issue was not properly presented and is not available for our review, that does not preclude defendants, if they are so advised, from raising it before the City Court on remittal.

Accordingly, the order dismissing the information should be reversed, the informations should be reinstated, and the matter should be remitted to the City Court of the City of Rochester for further proceedings on the informations.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler concur; Judge Fuchsberg taking no part.

Order reversed, etc.

       While the County and City Court orders designate the code provision allegedly violated as section 44-11-8, the information and the parties in their respective briefs refer to it as section 44-11 A.