author: Fuchsberg, J. Wachtler, J.

text:
    Walton L. Weiner, Appellant, v McGraw-Hill, Inc., Respondent.
    Argued September 1, 1982
    decided November 18, 1982

      POINTS OF COUNSEL

      Malcolm, H. Davis for appellant.
    Parties may by agreement or by their conduct modify the terms of a contract of hiring. (La Londe v Modern Album & Finishing Co., 38 AD2d 960, 35 NY2d 804; Crabtree v Elizabeth Arden Sales Corp., 305 NY 48; Triple Cities Constr. Co. v Maryland Cas. Co., 4 NY2d 443; Romano v Metropolitan Life Ins. Co., 271 NY 288; Parker v Borock, 5 NY2d 156.)

      Laura B. Hoguet and Dorothea W. Regal for respondent.
    I. The court below correctly held that Weiner did not have a contract of employment with McGraw-Hill. (Edwards v Citibank, N.A., 100 Misc 2d 59, 74 AD2d 553, 51 NY2d 875; Chin v American Tel. & Tel. Co., 96 Misc 2d 1070, 70 AD2d 791, 48 NY2d 603; King v Cornell Univ., 81 AD2d 712; Swerdloff v Mobil Oil Corp., 74 AD2d 258, 50 NY2d 913.) II. There is no basis in law or policy for imposing upon McGraw-Hill the obligation sought to be imposed here.
   OPINION OF THE COURT

Fuchsberg, J.

In a matter raising an issue of wide concern to employers and employees, we must decide whether, in the circumstances of this case, the plaintiff, though not engaged for a fixed term of employment, pleaded a good cause of action for breach of contract against his employer because, allegedly, he was discharged without the “just and sufficient cause” or the rehabilitative efforts specified in the employer’s personnel handbook and allegedly promised at the time he accepted the employment.

The operative facts deserve emphasis. Taken most favorably to the plaintiff, as they must in the context of an appeal from an order made pursuant to CPLR 3211 (subd [a], par 7) (219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506), they show that, in 1969, the plaintiff, Walton Lewis Weiner, a young man who four years earlier had entered upon a career in book publishing with another employer, Prentice-Hall, was invited to engage in discussions looking towards his joining the staff of the defendant, McGraw-Hill, Inc. In the course of these talks, McGraw’s representative, aware of Weiner’s position with Prentice-Hall, assured his prospect that, since his company’s firm policy was not to terminate employees without “just cause”, employment by it would, among other things, bring him the advantage of job security. Concomitantly, the application Weiner thereafter signed and submitted, on a printed McGraw form, specified that his employment would be subject to the provisions of McGraw’s “handbook on personnel policies and procedures”. This reference as relevant here, represented that “[t]he company will resort to dismissal for just and sufficient cause only, and only after all practical steps toward rehabilitation or salvage of the employee have been taken and failed. However, if the welfare of the company indicates that dismissal is necessary, then that decision is arrived at and is carried out forthrightly” (Handbook, § 8.20, par [8]).

These undertakings were important to Weiner, who alleges not only that he placed “good faith reliance” on them in leaving his existing employer, but in the process forfeited all his accrued fringe benefits and a salary increase proffered by Prentice-Hall to induce him to remain in its employ.

Following written approval, affixed at the foot of the application form by two members of the defendant’s staff, one the interviewer and the other a supervisor, McGraw engaged Weiner’s services. For the next eight years, so far as escalation in rank (to director of promotion services) and periodic raises in his level of compensation would seem to indicate, Weiner had every reason to believe he had, if anything, more than met the reasonable requirements of his new post. Other offers of employment he routinely rejected. Nevertheless, in February, 1977, he suddenly found himself discharged for “lack of application”.

There ensued this litigation, by which, in a complaint speaking broadly in the language of breach of contract, the plaintiff seeks damages for his wrongful termination. To support its CPLR 3211 (subd [a], par 7) motion to dismiss, defendant’s argument was, and is, that there existed no contract of employment under which McGraw-Hill’s evaluation of Weiner’s job performance could be challenged in a court of law. In its view, the form signed by the parties was just an application for employment and nothing more. Defendant further contends that its oral promise of job security was in no way binding on it.

In upholding the complaint, Special Term merely made a point of distinguishing this case from ones like Edwards v Citibank N.A. (74 AD2d 553, app dsmd 51 NY2d 875), where the employee, unlike here, had not bound himself to the contents of a handbook. On appeal from this decision, a divided Appellate Division reversed, on the law, and granted the motion. In effect, the majority reasoned that, because Weiner’s employment was one at will, his employer could release him arbitrarily and with impunity. Dissenting, Justice Kupferman would not agree, as he put it, that “an employee handbook on personnel policies and procedures is a corporate illusion, ‘full of sound * * * signifying nothing’”. (83 AD2d, at p 811.)

For the reasons which follow, we believe the plaintiff stated a cause of action.

Prefatorily, however, we note that the parties have supplemented the arguments they directed to the contract issue with ones which dwell, pro and con, on the effectiveness of a miscellany of such legal formulations as “abusive discharge”, “implied promise of fair treatment” and “good faith”, which some courts have applied, in the context of particular cases, to overcome what they conceived to be the harsh effect of inflexibly strict enforcement of at-will employment agreements, under which by their terms either employer or employee may sever the relationship without cause and without notice. Without more, because we hold that plaintiff’s complaint spelled out a cause of action in contract, this case does not present the occasion to address these theories.

Nevertheless, by way of background, it is of interest to observe that the at-will employment rule, which originated centuries ago as an adjunct to the law of master and servant in England, in later times was to find a receptive legal environment in laissez-faire nineteenth century America (see, especially, Martin v New York Life Ins. Co., 148 NY 117). So strong indeed was the turn-of-the-century legal and socioeconomic philosophy that nurtured it that for long Federal constitutional law deferred to it as well (see, e.g., Coppage v Kansas, 236 US 1, 13-14; Adair v United States, 208 US 161, 174-175). But, significantly, starting approximately in the days of the Great Depression in the early nineteen thirties and continuing through the present, though political, scholarly and industrial agitation for modification of the rule to provide greater job security has been, insistent, there is growing support for remedial legislative action (see Report of Committee on Labor and Employment Law, At-Will Employment and the Problem of Unjust Dismissal, 36 Record of Assn of Bar of City of New York 170 [April, 1981]; Blades, Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 Col L Rev 1404, citing to Tannenbaum, A Philosophy of Labor, p 9; Feerick, Employment-At-Will Rule and Unjust Dismissal, NYLJ, Aug. 6, 1982, p 1, col 1).

Concentrating then on plaintiff’s breach of contract approach alone, initially we dispose of any Statute of Frauds point. Though not raised by the defendant, Special Term thought it pertinent. Suffice it to say that the agreement between Weiner and McGraw-Hill, whether terminable at will or only for just cause, is not one which, “by its terms”, could not be performed within one year and, therefore, is not one which is barred (General Obligations Law, § 5-701; North Shore Bottling Co. v Schmidt & Sons, 22 NY2d 171, 175-176; see, generally, 28 ALR2d 878).

Turning now to substance, it is also clear that the fact that plaintiff was free to quit his employment at will, standing by itself, was not entitled to conclusory effect. Such a position proceeds on the oversimplified premise that, since the plaintiff was not bound to stay on, the agreement for his employment lacked “mutuality”, thus leaving the defendant free to terminate at its pleasure. But this would lead to the not uncommon analytical error of engaging in a search for “mutuality”, which is not always essential to a binding contract, rather than of seeking to determine the presence of consideration, which is a fundamental requisite. For, while coextensive promises may constitute consideration for each other, “mutuality”, in the sense of requiring such reciprocity, is not necessary when a promisor receives other valid consideration (Clausen & Sons v Hamm Brewing Co., 395 F2d 388; Meurer Steel Barrel Co. v Martin, 1 F2d 687, 688; McCall Co. v Wright, 198 NY 143, 153-154; see 1 Williston, Contracts [3d ed], § 105A, p 421 et seq.; 1A Corbin, Contracts, § 152, p 2 et seq.; 21 NY Jur 2d, Contracts, § 11, p 424).

As to consideration, any basic contemporary definition would include the idea that it consists of either a benefit to the promisor or a detriment to the promisee (Holt v Feigenbaum, 52 NY2d 291, 299). As elaborated in Hamer v Sidway, the seminal case on the subject, “[i]t is enough that something is promised, done, forborne or suffered by the party to whom the promise is made as consideration for the promise made to him” (124 NY 538, 545).

Far from consideration needing to be coextensive or even proportionate, the value or measurability of the thing forborne or promised is not crucial so long as it is acceptable to the promisee. Thus, courts have not hesitated to find sufficient consideration not only in what is now the proverbial peppercorn (Whitney v Stearns, 16 Me 394), but in “a horse or a canary, or a tomtit if [the promisee] chose” (Couldery v Bartrum, 19 Ch D 394, 399 [Jessel, M.R.], both cited in 1 Corbin, Contracts, § 122, p 528). In fact, the detriment suffered or the thing promised need be of no benefit to the one who agreed to it. So, in Hamer what the plaintiff “suffered” was self-denial of liquor and tobacco, a sacrifice which prompted our court, quoting from Anson’s Principles of Contracts (at p 63), to explain that it would “‘not ask whether the thing which forms the consideration does in fact benefit the promisee or a third party, or is of any substantial value to anyone’ ” (Hamer v Sidway, supra, at p 545).

Apt too in the circumstances before us now is the following comment by Corbin: “[I]f the employer made a promise, either express or implied, not only to pay for the service but also that the employment should continue for a period of time that is either definite or capable of being determined, that employment is not terminable by him ‘at will’ after the employee has begun or rendered some of the requested service or has given any other consideration * * * This is true even though the employee has made no return promise and has retained the power and legal privilege of terminating the employment ‘at will’. The employer’s promise is supported by the service that has been begun or rendered or by the other executed consideration” (1A Cor-bin, Contracts, § 152, p 14). So understood, an agreement on the part of an employer not to dismiss an employee except for “good and sufficient cause only” and, if such cause was given, until the prescribed procedures to rehabilitate had failed, does not create an ineluctable employment at Will.

These propositions in mind, we find in the record, inclusive of plaintiff’s own affidavit, sufficient evidence of a contract and a breach to sustain a cause of action. First, plaintiff was induced to leave Prentice-Hall with the assurance that McGraw-Hill would not discharge him without cause. Second, this assurance was incorporated into the employment application. Third, plaintiff rejected other offers of employment in reliance on the assurance. Fourth, appellant alleged that, on several occasions when he had recommended that certain of his subordinates be dismissed, he was instructed by his supervisors to proceed in strict compliance with the handbook and policy manuals because employees could be discharged only for just cause. He also claims that he was told that, if he did not proceed in accordance with the strict procedures set forth in the handbook, McGraw-Hill would be liable for legal action. In our view, these factors combine to present a question for trial: Was defendant bound to a promise not to discharge plaintiff without just and sufficient cause and an opportunity for rehabilitation? (Cf. Parker v Borock, 5 NY2d 156, 159-160 [collective bargaining agreement provision prohibiting discharge “without good and sufficient cause” held binding on employer though the employee otherwise would have been one at will].)

Finally, on the trial, it should, of course, be remembered that Martin itself, when, in 1895, it adopted New York’s at-will rule, afforded it no greater status than that of a rebuttable presumption (148 NY, at p 121; see, also, Mandel, Preparation of Commercial Agreements [1978 ed], pp 164-165 [if no definite term is fixed by contract, a hiring at will is deemed to have resulted only “in the absence of circumstances showing a different intention”]). In determining whether such a presumption is overcome here, the trier of the facts will have to consider the “course of conduct” of the parties, “including their writings” (Brown Bros. Elec. Contrs. v Beame Constr. Corp., 41 NY2d 397, 399) and their antecedent negotiations. Moreover, as Brown suggests (at p 400), it is not McGraw’s subjective intent, nor “any single act, phrase or other expression”, but “the totality of all of these, given the attendant circumstances, the situation of the parties, and the objectives they were striving to attain”, which will control.

Consequently, the order of the Appellate Division should be reversed and the order of Special Term reinstated.

Wachtler, J.

(dissenting). For almost a century, the common law of New York has provided that absent some form of contractual agreement between an employee and employer establishing a durational period, the employment is presumed terminable at the will of either party and the employee states no cause of action or breach of contract by alleging that he or she has been discharged (Martin v New York Life Ins. Co., 148 NY 117). Plaintiff seeks to avoid the effect of this rule by alleging that a statement in defendant’s personnel manual, entitled “McGraw-Hill and You”, that employees would be dismissed “for just and sufficient cause only”, together with a reference to the manual in a printed application form he signed when he applied to defendant for employment, constitutes an agreement by defendant to employ him “for the remainder of his working life”.

In my view, as a matter of law, neither document alone nor in combination contains any language indicating that defendant intended to be bound by their contents. Thus no question of fact was presented for jury consideration and the court below properly dismissed the first cause of action for breach of contract. The employment in question was terminable at the will of either party and plaintiff has no cause of action against defendant for breach of contract simply because he was discharged.

The printed application form, entitled “employment application”, spells out none of the critical terms of plaintiff’s employment. No reference is made to the type of work plaintiff was being considered for, salary, or the duration of the hiring. In fact, nothing either explicitly or implicitly suggests that defendant has offered plaintiff a position or that plaintiff has accepted an offer of employment.

Significantly, the application form contains the words “do not write below this line” directly beneath the space provided for the applicant’s signature, and below the line is a space for the interviewer to record his name, followed by another section captioned “record of employment (to be completed by Requisitioner)”. This space, along with another entitled “Additional Approval” are signed by company officials to record “Applicant employed as Senior Copywriter will begin work on October 20,1969 at a salary of $15,000 per year”. (Plaintiff signed the form on Sept. 15, 1969.) It is evident from the layout of the form, then, that the signatures of the company officials were not part of the application and represent no contractual exchange between plaintiff and defendant. Those signatures and the statement that plaintiff has been employed are, rather, nothing more than a memorialization of the hiring event for internal record-keeping purposes.

Similarly, defendant’s personnel manual expresses no intent that defendant be immutably bound by the document. Nor would one expect the manual to contain any strict promissory language, given that, as the court below noted, defendant could unilaterally amend or withdraw any of the provisions found there. Nothing in either the manual or the employment application form prohibited defendant from so modifying the manual in its sole discretion. “McGraw-Hill and You” is nothing more than a conglomerate of broad internal policy guidelines generally followed, none of which even slightly portend to enumerate the essential elements of a contract of employment between defendant and an employee. No language expressing an intent to be bound appears in the personnel manual, and no such intent can fairly be construed from any of the policy guidelines espoused.

Considerations of public policy also dictate against broad judicial construction of the documents in question to present a triable issue as to whether they constitute an employment contract. It has been suggested that restricting an employer’s ability to discharge an employee for unsatisfactory performance will create additional inefficiency in the workplace in that the employer will forego dismissing an incapable employee in order to avoid the time and expense of litigation (Report of Committee on Labor and Employment Law, At-Will Employment and the Problem of Unjust Dismissal, 36 Record of Assn of Bar of the City of New York 170, 188). A less savory result of imposing additional restrictions on the ability to discharge an employee, at least as far as the residents of this State are concerned, is that businesses and industry, the major employers in New York will simply move elsewhere.

In view of today’s record high unemployment, and considering that between 1975 and 1980 approximately 60,000 industry-related jobs in New York were lost as a direct result of business migration, I cannot join the majority’s bestowal of contractual rights based upon documents which make it all too clear that no contractual rights were ever intended.

Accordingly, I respectfully dissent and vote to affirm.

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

Order reversed, with costs, and the order of Supreme Court, New York County, reinstated.

      . Styled as one made pursuant to CPLR 3211 (subd [a], par 7) after joinder of issue, as permitted by CPLR 3211 (subd [e]), and never having been converted to one for summary judgment as permitted by CPLR 3211 (subd [c]), the motion required the court to examine any supplementary submissions to the end that plaintiff’s allegations be given their most favorable intendment (Arrington v New York Times Co., 55 NY2d 433, 442; Guggenheimer v Ginzburg, 43 NY2d 268, 272).

      . We deal here with the plaintiff’s first cause of action alone. As originally drawn, the complaint contained three causes of action, but the second and third, theorizing Weiner’s grievance in terms of tort, were dismissed for legal insufficiency. No appeal having been taken from their rejection, these do not demand our attention.

      . (See, e.g., Toussaint v Blue Cross & Blue Shield of Mich., 408 Mich 579; Pugh v See’s Candies, 116 Cal App 3d 311; Cleary v American Airlines, 111 Cal App 3d 443; Fortune v National Cash Register Co., 373 Mass 96; Note, Protecting At Will Employees Against Wrongful Discharge: The Duty to Terminate Only in Good Faith, 93 Harv L Rev 1816,1824-1826; Note, A Common Law Action for the Abusively Discharged Employee, 26 Hastings LJ 1434, 1441; see, generally, Discharge of At-Will Employee, Ann., 12 ALR4th 544, which, interestingly, indicates that Johnson v National Beef Packing Co., 220 Kan 52, and Cederstrand v Lutheran Brotherhood, 263 Minn 520, reflect a small minority’s vestigial opposition to an ever growing “trend toward statutory and judicial rejection of the traditional employment-at-will common-law rule”; Feerick, Employment-at-Will Rule and Unjust Dismissal, NYLJ, Aug. 6, 1982, p 1, col 1.)

      . As far back as 1562, England placed statutory limits upon the power of an employer to terminate an employee unless there was “reasonable cause to do so” (1 Blackstone’s Commentaries, 131 [1878]). However, when transplanted to this country, the rule resumed its unconditional classical form (see De Giuseppe, Effect of the Employment-At-Will Rule on Employee Rights to Job Security and Fringe Benefits, 10 Ford Urban LJ 1, 3-4; see Feerick, Employment at Will, NYLJ, Oct. 5,1979, p 1, col 1).

      . The holding in Martin was grounded essentially on a statement in Wood, Master and Servant (8 136 [2d ed], 1886), in which, as subsequent commentators have pointed out, the author relied on no more than “scant authority of questionable value”, the cases he cited having been decided “entirely on their facts and none stand squarely for the general proposition that an indefinite hiring is terminable at will” (De Giuseppe, op. cit, 10 Ford Urban LJ, at p 6, and n 13).

      . In the same vein, it has been put that “where the promisor makes a request, the only reliance which makes the promisor’s failure to perform actionable is the promisee’s doing what is requested and that reliance if detrimental is consideration and liability cannot be predicated on promissory estoppel” (Snyder, More On Promissory Estoppel, 26 Brklyn L Rev 41). In so saying, Professor Snyder points up the interesting fact that, because, on analysis, most reported applications of promissory estoppel involve the forbearance of a right or benefit by the promisee at the request of the promisor, thus placing them within the mainstream of contract law, their reliance on promissory estoppel was unnecessary (see, e.g., Rosen v Guaranteed Sanitation, 32 Misc 2d 698). Without more, therefore, the present case, contrary to plaintiff’s assertions, is not an appropriate one in which to even consider, much less pass upon, his estoppel assertions.

      . As to the alarums sounded by the dissent concerning the possibility that this opinion, bespeaking nothing but traditional contract law principles, will move employers out of the State, suffice it that there is nothing to indicate that even California, Michigan, Massachusetts or other States which have adopted less conventional theories, have had any such experience. To this it well may be added that the Association of the Bar Report, which both this opinion and the dissent (dissent, p 469) find cite-worthy, has this to say: “Arbitrariness in the workplace may also be counterproductive in a larger sense, in breeding a demoralized workforce and its own brand of inefficiency. Certainly the examples of Japan and Germany weaken the force of the contention that protection against arbitrary discharge necessarily undermines the productivity of an economy” (Report of Committee on Labor and Employment Law. 36 Record of the Assn of Bar of City of New York 170, 188-189, citing Vogel, Japan as Number One. Lessons for America, pp 131-157; Drucker, The Job as Property Right, Wall St J, March 4. 1980, p 24, col 4; Pascale, Personnel Practices and Employee Attitude, 31 Human Relations 597; Hallett, Social Economy of West Germany, p 90).


source: Caselaw Access Project

author: Wachtler, J. Jasen, J.

license: Public Domain

text:
    The People of the State of New York, Appellant, v Nathaniel Harrison and Kevin Cabey, Respondents.
    Argued September 3, 1982
    decided November 18, 1982

      POINTS OF COUNSEL

      John J. Santucci, District Attorney (Michael J. Connolly of counsel), for appellant.
    The physical evidence herein was recovered pursuant to a lawful search. (Terry v Ohio, 392 US 1; People v De Bour, 40 NY2d 210; People v Howard, 50 NY2d 583; People v Roman, 53 NY2d 39; People v Ingle, 36 NY2d 413; People v Cantor, 36 NY2d 106; Pennsylvania v Mimms, 434 US 106; People v Diaz, 41 NY2d 876; People v Miller, 52 AD2d 425.)

      Jack L. Schiller for Nathaniel Harrison, respondent.
    The trial court correctly suppressed the physical evidence seized by the police officers since the discovery of said evidence was a direct result of unconstitutional conduct. (People v Cantor, 36 NY2d 106; People v De Bour, 40 NY2d 210; People v Prochilo, 41 NY2d 759; People v Leonti, 18 NY2d 384; People v Roman, 74 AD2d 589; Pennsylvania v Mimms, 434 US 106; People v Diaz, 41 NY2d 876.)
   OPINION OF THE COURT

Wachtler, J.

Two related search and seizure questions are presented by this appeal. First, whether the use of a dirty rental car in the City of New York establishes reasonable suspicion, as a matter of law, that the occupants are engaged in criminal activity. Second, whether the police officers’ actions in approaching the parked car, asking the driver for his license and registration and further ordering the three occupants to remain in the vehicle constituted such a minor intrusion on constitutional rights that the police may do so absent reasonable suspicion. The trial court held for the defendants on both points and suppressed the evidence seized from the car. The Appellate Division affirmed, with one dissent. The prosecutor appeals.

On January 4, 1979 two New York City police officers, Stahl and Dillon, were on patrol in an unmarked car in Queens County. Dillon was driving and Stahl was acting as “recorder” in the passenger seat. Both officers were in plain clothes. At approximately 1:00 a.m. Officer Stahl, the only witness for the prosecution to testify at the hearing, observed a 1978 Chrysler Cordoba carrying three black men pass in the right lane. The officer could tell from the license plate that it was a rental car, and noted that it was extremely dirty. The police followed the car for three to five blocks until it parked near an open bar. Officer Stahl told his partner to pull up next to the car, and then park behind it. The officer conceded at the hearing that up to that point he had not observed the defendants violate any law and that his interest was aroused solely by the fact that the men were riding in a dirty rental car.

After parking behind the defendants the officers left their car and walked toward the other vehicle. As Officer Stahl approached he noticed that it was a two-door sedan; that the defendant Cabey was in the driver’s seat; that another man, Gilbert Williams, was sitting in a slumped position in the rear seat; and that the defendant Harrison had opened the door and was proceeding to get out of the car. Stahl immediately told Harrison to get back in the car. He also told Williams to sit up. Both men complied with these directions. Officer Dillon then stationed himself beside the passenger door while Stahl crossed to the driver’s side, identified himself as a police officer and told Cabey to produce his license and registration.

Cabey told the officer that he did not have his license and that Harrison had the registration papers. While Harrison looked for those papers Officer Stahl returned to the police car and checked to see if the rental car had been reported stolen. He was informed that it was not but that it had been listed as an impounded vehicle. While Stahl attempted to determine what that meant he looked through the briefing notes he had taken at the beginning of his tour and found that approximately 24 hours ago three men roughly fitting the description of the defendants and Williams had committed an armed robbery in the area and had fled in a “new” bluish green Cordoba, similar in color to the defendants’ vehicle.

As Officer Stahl walked back toward the defendants’ car he noticed that the defendant Harrison was lifting up his head from a crouched position. When the officer pointed his flashlight into the car at the floor in front of Harrison he saw a .22 caliber revolver. Stahl then drew his gun and informed his partner of the gun. During the subsequent search of the car and its occupants the officers found two more handguns and ammunition.

At the station house Harrison was able to produce a registration for the vehicle and a receipt showing that the vehicle was no longer impounded and thus, as the officer conceded at the hearing “was properly in his possession”. The defendants, however, were charged and subsequently indicted for unlawful possession of the weapons.

As noted the trial court granted the defendants’ motion to suppress the evidence seized from the vehicle. The court held that Officer Stahl’s actions in ordering the occupants to remain in the vehicle “constituted more than the minimal intrusion of requesting information” and could not be justified “in the absence of any indication of criminal activity”. The court also held that when the officer gave the order he was relying solely on the fact that the three men were occupying a dirty rental car, which the court found was insufficient to provide the requisite reasonable suspicion that “criminal activity was afoot”.

The Appellate Division affirmed agreeing that reasonable suspicion was the appropriate standard and that the facts did not establish reasonable suspicion. One Justice dissented, agreeing essentially with the prosecutor’s position.

At the outset we observe that, in view of the factual findings made below, this case does not deal with the powers of the police to stop a vehicle. Here the defendants had voluntarily stopped the vehicle and parked it before the police approached. The prosecutor notes that under our decision in People v De Bour (40 NY2d 210) a police officer does not need reasonable suspicion to approach an individual for information. All that is required is an articulable basis, which in this case was supplied by the extremely dirty condition of the defendants’ rental car. The prosecutor further contends that once the officers had the right to approach the car they could reasonably direct the occupants to remain in the car because this reduces the potential danger to the police and is “an extremely minor intrusion on the defendants’ rights”. It is urged that this is comparable to police officers ordering defendants out of a car to protect themselves which, the prosecutor contends, was recently held constitutional in Pennsylvania v Mimms (434 US 106). The prosecutor also contends that the courts below erred in finding the facts insufficient in this case because our recent decision in People v Roman (53 NY2d 39) stands for the proposition that “the initial stop” can be justified “on the basis of the unusual condition of the defendant’s rented car”.

The prosecutor’s primary argument overlooks the basis for our holding in De Bour. In that case we observed (at p 223) that “the propriety of police conduct must weigh the interference it entails against the precipitating and attending conditions. By this approach various intensities of police action are justifiable as the precipitating and attendant factors increase in weight and. competence”. Thus when we held in that case that a police officer did not need reasonable suspicion to approach a citizen for further information we did so only because we recognized that such an inquiry involved a minimal intrusion that was not equivalent to a stop in which the individual’s freedom of movement is significantly interrupted (see People v De Bour, supra, at pp 216, 223). It should be evident from our holding in that and subsequent decisions that if the police escalate the encounter as they did here by exercising restraint over the individual as opposed to his vehicle, even out of concern for their safety, a more substantial predicate is required. In other words, before the police can forcibly or constructively stop an individual as was done here by the order to remain in the car there must be some articulable facts, which initially or during the course of the encounter, establish reasonable suspicion that the person is involved in criminal acts or poses some danger to the officers (People v De Bour, supra, at p 216; People v Carrasquillo, 54 NY2d 248, 252). Under the prosecutor’s analysis reasonable suspicion would never be required because every stop begins with a police officer approaching an individual for information — a situation in which there is at least an unfounded risk to the officer’s safety.

Neither is there any merit to the argument that prohibiting the occupants from leaving the automobile is such a minor intrusion on their rights that the police may do so absent reasonable suspicion. Confining the occupants to the car, even temporarily, is at least equivalent to a stop. A temporary stop is of course less intrusive than an arrest and thus does not require probable cause (see, e.g., Terry v Ohio, 392 US 1; People v DeBour, supra; see, also, People v Ingle, 36 NY2d 413; Delaware v Prouse, 440 US 648). However a stop is nevertheless a limited seizure of the person which at least requires reasonable suspicion (Terry v Ohio, supra; People v De Bour, supra; see, also, CPL 140.50, subd 1). The Supreme Court’s decision in Pennsylvania v Mimms (434 US 106, supra) does not, as the prosecutor suggests, represent a departure from that requirement in cases involving police encounters with those using the public highways.

The key fact in the Mimms decision is that the driver had been lawfully stopped for a traffic offense. The court noted (at p 111) that the police had “already lawfully decided that the driver shall be briefly detained; the only question is whether he shall spend that period sitting in the driver’s seat of his car or standing alongside it”. The court concluded that out of a concern for his own safety the police officer could order the driver out of the vehicle because under the circumstances (at p 109) “the incremental intrusion resulting from the request to get out of the car” once the driver had been lawfully stopped “can only be described as de minimis”. The court did not hold that the police could take similar action when, as in the case now before us, the driver had not been lawfully stopped for a violation of the law. Indeed the court expressly noted (at p 111, n 6) that “we do not hold today that ‘whenever an officer has an occasion to speak with the driver of a vehicle, he may also order the driver out of the car’. We hold only that once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures”.

In sum, the courts below were correct in their conclusion that the police officers’ actions were unjustified in the absence of reasonable suspicion.

The courts’ further holding that reasonable suspicion was lacking in this case involves a mixed question of law and fact which is beyond the review powers of this court if the evidence at the hearing supported the determination made by the lower courts (see, e.g., People v Wharton, 46 NY2d 924, 925; People v Clements, 37 NY2d 675, 677-678; People v Oden, 36 NY2d 382, 384-385). The rule applies “where the facts are disputed, where credibility is at issue or where reasonable minds may differ as to the inference to be drawn” (People v McRay, 51 NY2d 594, 601). The dissenter’s contention with respect to inferences was specifically rejected in People v Alexander (37 NY2d 202; see, also, People v Morales, 42 NY2d 129, 137-138). The rule, it should be noted is not an oddity employed only in a limited category of cases. It is a basic principle which has been broadly applied to a wide variety of issues including, for instance, whether a defendant consented to questioning (People v Morales, supra), whether the police exercised due diligence in attempting to locate an informer (People v Budd, 46 NY2d 930), whether there was custodial interrogation (People v Williamson, 51 NY2d 801), whether a room was exclusively in the defendant’s control (People v Minori, 51 NY2d 930, 931), whether there was consent to search (People v Meredith, 49 NY2d 1038), whether there was an intent to abandon property (People v Hogya, 56 NY2d 602), and of course whether there was probable or reasonable cause for a search (People v Alexander, supra; People v Wharton, supra; People v Rizzo, 40 NY2d 425 [noting that the rule applies to findings that probable cause did not exist as well as findings that there was probable cause]). The application of the rule in search and seizure cases especially accords with the general principle long recognized in civil cases that questions of the reasonableness of conduct can rarely be resolved as a matter of law even when the facts are not in dispute (see, e.g., Andre v Pomeroy, 35 NY2d 361).

In the case now before us there is no basis for setting aside the finding of the courts below that the defendants’ use of a dirty rental car in the City of New York did not establish reasonable suspicion that they were involved in criminal conduct. Contrary to the dissenter’s view it is not common knowledge that ordinarily rental cars are relatively clean and well maintained. Rental companies may rent their cars in that condition but their customers are not always so fastidious. The cars are often rented to individual customers for weeks or months at a time and it is not always possible, even for concerned customers, to maintain the cars in their original condition, particularly in large metropolitan areas. Thus if the defendants’ use of a dirty rental car in the City of New York could give rise to reasonable suspicion, that certainly was not the only inference that could be drawn. Because reasonable minds could differ as to the inferences and thus as to whether the police action was justified, further review by this court is precluded (People v Wharton, 46 NY2d 924, supra).

Our holding in People v Roman (53 NY2d 39, supra) is not to the contrary. In that case the defendant was stopped after he was found to be driving a dirty rental vehicle, with extensive damage, in an area known as a dumping ground for cars. Under those circumstances the lower courts held that there was reasonable suspicion of criminality and we deferred to their determination. The case simply illustrates the general rule that questions of reasonableness “must necessarily turn on the facts in each individual case” (People v Green, 35 NY2d 193, 195; People v Prochilo, 41 NY2d 759, 761) and that the determination of the lower courts on such points is not to be set aside if it is supported by the record. The case, does not stand for the proposition that the use of a dirty rental car establishes reasonable suspicion as a matter of law, or that the police are always justified in approaching the occupants for information and prohibiting them from leaving a car whenever the car bears rental plates and is apparently in need of cleaning.

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

Jasen, J.

(dissenting). The majority today holds that the police officers’ actions in making a simple inquiry of the occupants of a “very, very dirty” parked rental car as to the ownership of the vehicle and requesting one of the occupants to remain in the car as he attempted to exit before the inquiry could be conducted were unjustified in the absence of “reasonable suspicion * * * that the occupants [of the vehicle were] engaged in criminal activity.”

I do not believe that the proper legal standard to be applied under the circumstances present here is reasonable suspicion that criminal activity is afoot but, rather, all that is required and all that should be required for a police officer to request any information is an objective credible reason for making the inquiry, which need not necessarily be related to criminality. (People v De Bour, 40 NY2d 210, 223.) Thus, I would hold that the police had a right, based on an objective credible reason, to initiate an inquiry of the driver of the vehicle and that the police officers’ conduct in requesting Harrison to remain in the vehicle as he attempted to exit was justified and reasonable under the circumstances. Accordingly, I would reverse the order of the Appellate Division and deny defendants’ motions to suppress the seizure of three loaded revolvers.

At the outset, it is important to note that this case does not involve a stopping or blocking of a motor vehicle by the police. Nor does it involve a stop and frisk situation, or a case where the police approached the car with guns drawn and ordered the occupants to freeze and not move. All that happened was that two police officers observed a “very, very dirty” rental car with a rear license plate hanging askew. They approached the parked car to inquire of the occupants as to the ownership of the vehicle and requested one of the occupants, defendant Harrison, to remain in the car as he attempted to exit. At this point, Officer Stahl proceeded to the driver’s side of the vehicle where he asked to see defendant Cabey’s license and registration. Another passenger, Williams, who was lying down in the back seat, was told to sit up. Cabey stated that he did not have either a driver’s license or the registration for the car. Harrison volunteered his license, but did not have the registration. Williams remained silent. Officers Stahl and Dillon then returned to the patrol car and ran a license plate check which indicated that the car was an impounded vehicle. Shortly thereafter, Officer Stahl reviewed notes he had taken earlier that day during a briefing session and recalled that three men matching the description of the men in the Chrysler had robbed a store approximately one mile away the previous night. The robbery suspects had used a late model Chrysler as a getaway car. The officers then left their car and were approaching defendants’ vehicle when Officer Stahl noticed Harrison rise from a crouched position. The officer shone his flashlight at the floor near where Harrison was sitting and noticed a revolver under Harrison’s feet. The officers then searched the car, found three loaded revolvers and placed the suspects under arrest.

In analyzing the actions of these officers, “[w]e bear in mind that any inquiry into the propriety of police conduct must weigh the interference it entails against the precipitating and attending conditions. By this approach various intensities of police action are justifiable as the precipitating and attendant factors increase in weight and competence.” (People v De Bour, 40 NY2d 210, 223, supra; see, also, People v Ingle, 36 NY2d 413.) In deciding whether the police officers acted reasonably, it is necessary to consider “(1) the nature and scope or severity of the interference with individual liberty, (2) the public interest served, and (3) the objective facts upon which the enforcement [officers] relied, in light of [their] knowledge and experience.” (People v Howard, 50 NY2d 583, 589.) It must also be remembered that “the authority to intercept persons on the street is derived from two sources, the stop-and-frisk law (CPL 140.50) and the common-law power to inquire.” (People v Cantor, 36 NY2d 106, 112.) While reasonable suspicion that a particular person has committed, is committing, or will commit a crime is required before the police may stop and frisk that individual (CPL 140.50, subd 1; Terry v Ohio, 392 US 1; People v De Bour, supra, at p 223), less is required when a police officer is merely requesting information from an individual (People v De Bour, supra, at p 223).

Applying these factors, it must be determined whether (1) the police officers were justified in conducting an inquiry of the defendants as to the car; and (2) whether the scope of the officers’ conduct in conducting the inquiry — i.e., the request of the officers to Harrison not to leave the car — was reasonable under the circumstances.

As to the propriety of the inquiry, the question is whether the officers under the undisputed facts present here were justified in approaching defendants’ car to request information as to ownership of the vehicle. To justify this action, only an objective credible reason for doing so, not necessarily related to criminality, is all that is required. (People v De Bour, supra, at p 223.) To require reasonable suspicion would not only contradict the principles espoused in People v De Bour, but would defy common sense as well. The policies underlying this principle are deeply rooted in the opinions of this court, as well as those of the United States Supreme Court. In People v Rivera (14 NY2d 441, 445), this court recognized that “the evidence needed to make the inquiry is not of the same degree or conclusiveness as that required for an arrest.” This recognition was expressly based on the grounds that “[t]he business of the police is to prevent crime if they can. Prompt inquiry into suspicious or unusual street action is an indispensable police power in the orderly government of large urban communities. It is a prime function of city police to be alert to things going wrong in the streets; if they were to be denied the right of such summary inquiry, a normal power and a necessary duty would be closed off.” (People v Rivera, supra, at pp 444, 445.) “[T]he legal theory of Rivera on the initial general right of police inquiry on the streets was approved in the note to Chief Justice Warren’s opinion in Terry v. Ohio (392 U. S. 1, 11, n. 5).” (People v Rosemond, 26 NY2d 101, 104; see, also, People v Peters, 18 NY2d 238, 242.)

It seems abundantly clear that Officers Stahl and Dillon had an objective credible reason to request the license and registration of defendant Cabey, based upon the car’s condition — i.e., the car involved was rented, it was “very, very dirty”, and it was missing a bolt securing the license plate, which caused the license plate to hang askew. It was the unusual condition of the car, which the officers knew was rented by virtue of the license number, which attracted the officers’ attention since it is common knowledge that ordinarily rental cars are relatively clean and well maintained.

In a similar case, we held that police officers who observed a very dirty rental car with a dented fender in an area known for “dumping” acted with reasonable suspicion when they stopped that car. (People v Roman, 74 AD2d 589, revd on other grounds 53 NY2d 39.) Our decision in Roman implicitly recognized the fact that automobile rental companies routinely keep their cars clean and well maintained. It was decided, therefore, that, based upon the unusual condition of defendants’ rented car, giving rise to some suspicion involving the vehicle, police investigation was required. The reasoning of Roman is equally applicable here. The observations of Officers Stahl and Dillon were more than sufficient to arouse the suspicion of the officers as to the ownership of the car involved. The need to inquire and investigate was not the result of an arbitrary whim or caprice, but, rather, was based upon objective facts which warranted the intrusion of an inquiry as to the vehicle. Under these circumstances, I believe they acted reasonably in approaching the car to verify their suspicion.

Turning then to the second prong of the analysis — whether the scope of the officers’ conduct in making the inquiry (i.e., the request of the officers to Harrison not to leave the car) was reasonable — regardless of how one characterizes the request by the police that Harrison remain in the car (i.e., limited seizure or limited intrusion), it is clear that the act constituted only a minor inconvenience which was necessary for the officers to attempt to obtain the information they had a right, if not a duty, to seek. (People v De Bour, supra, at p 220; People v Rivera, supra, at p 444.) A less intrusive interference by the police while attempting to elicit proper and lawful information is difficult to imagine.

For this reason and the reasons to follow, I conclude that the officers acted reasonably in this case. This conclusion becomes even clearer when the interests of the government are balanced against the severity of interference with the defendants’ individual rights. (People v Howard, 50 NY2d 583, 589, supra.) The interference with the defendants’ rights was minimal. They were not forced over to the curb and instructed to stop and park their car. No force, either actual or implied, was used and defendants were not degraded in any way. Moreover, if the inquiry dispelled the officers’ justifiable suspicion, the defendants would have been free to exit the parked vehicle and go about their affairs. The officers did not even conduct a significant interrogation. Harrison was merely told to stay in the car while Cabey was asked for his license and registration. In a case involving a similar issue, the United States Supreme Court held that ordering a person to get out of his car was a de minimis intrusion. (Pennsylvania v Mimms, 434 US 106, 111.) I believe, therefore, that ordering Harrison to remain in the car until an inquiry could be made was even less intrusive. It cannot be seriously contended that the slight inconvenience imposed on Harrison or the other occupants of the car was significant in any way. (See People v Rivera, supra, at p 447.)

The interests of the government, on the other hand, were compelling. Officer Stahl, in properly attempting to request information of the defendants, sought assurance that Harrison remain in the car. This was necessary not only so that Harrison could be questioned, if necessary, but also to insure the safety of the police officers. “If we recognize the authority of the police to stop a person and inquire concerning unusual street events we are required to recognize the hazards involved in this kind of public duty. The answer to the question propounded by the policeman may be a bullet; in any case the exposure to danger could be very great.” (People v Rivera, supra, at p 446.) Former Judge Bergan made this statement in an opinion justifying a frisk. His words apply with even greater force when a much less intrusive action such as a request to remain in a car is at issue. The alarming increase in acts of violence directed against police officers speaks for itself. “We think it too plain for argument that the State’s proffered justification — the safety of the officer — is both legitimate and weighty.” (Pennsylvania v Mimms, supra, at p 110.)

It is imperative that police officers not be stripped of the right to impose a very slight inconvenience on an individual when it is necessary for the protection of the officer. The opinion of the majority, requiring a police officer to have reasonable suspicion of criminal activity before ordering an individual to remain in his car, would effectively destroy the right of the police to safely request information and make proper inquiries. That requirement also conflicts with the standards established by this court in People v De Bour (supra, at p 223). Additional support for the compelling nature of the State’s interest in this issue is found in a study which reported that “approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile.” (Bristow, Police Officer Shootings — A Tactical Evaluation, 54 J Grim L C & P S 93 [1963], cited in Pennsylvania v Mimms, supra, at p 110; see, also, Adams v Williams, 407 US 143, 148, n 3.) Such a situation is frighteningly apparent in the instant case involving a nighttime inquiry where the occupants of the car outnumbered the police. The chain of events whereby Harrison sought to get out of the car as the officers approached, his subsequent bending over in the front seat after being ordered to remain in the car, and the ultimate discovery of a loaded revolver on the floor under his feet paints a chilling scenario of what might have happened had Officer Stahl not told Harrison to remain in the car.

Since the police have a duty to protect the public by requesting information and making reasonable inquiries concerning unusual events or activities, it is incumbent upon the courts not to allow unreasonable restrictions to be imposed on those officers which would endanger their lives. After an officer has an objective credible reason for seeking information, he must be allowed to follow reasonable procedures which will allow him to make the necessary inquiries and at the same time insure his own personal safety. This is especially true when the inquiry procedure involved constitutes a minimal interference with the rights of the individual, as there was here.

I also take issue with the majority’s further holding that the legal predicate (objective credible reason or reasonable suspicion) required to justify the police officers’ actions in this case, as found by the courts below, “involves a mixed question of law and fact which is beyond the review powers of this court.” (People v Alexander, 37 NY2d 202.)

This limitation of the court’s power to review “mixed questions of law and fact” is self-imposed and, in my opinion, should be reconsidered. I would agree that the determination of the courts below as to the existence of facts and circumstances, the factual inferences to be drawn therefrom, the credibility of witnesses and the weight to be given to the evidence presented are all questions of fact and, consequently, the suppression court’s determination concerning these issues, when affirmed by the Appellate Division, is beyond this court’s power to review. However, when the facts and circumstances are undisputed or when certain facts and circumstances have been found to exist by the courts below, the issue as to whether on these facts there was an objective credible reason for the police to make an inquiry is a pure question of law, properly reviewable by this court. (People v Oden, 36 NY2d 382; see, also, People v Ingle, 36 NY2d 413; People v Cantor, 36 NY2d 106; People v Corrado, 22 NY2d 308; Fagnan v Knox, 66 NY 525; Besson v Southard, 10 NY 236; Masten v Deyo, 2 Wend 424; McCormick v Sisson, 7 Cow 715.)

The majority erroneously cites People v Oden (supra) as support for its conclusion that “probable cause”, “reasonable suspicion”, “objective credible reason” and similar determinations are beyond the review powers of this court. In that case, we made it abundantly clear that in examining these mixed questions of law and fact “the truth and existence of the facts and circumstances bearing on the issue [is] a question of fact, and the determination of whether the facts and circumstances found to exist and to be true constitute probable cause [is] a question of law”. (People v Oden, supra, at p 384 [emphasis supplied].) The court reiterated the principles espoused almost without exception, for 150 years. “If the facts and circumstances adduced as proof of probable cause are controverted so that conflicting evidence is to be weighed, if different persons might reasonably draw opposing inferences therefrom, or if the credibility of witnesses is to be passed upon, issues as to the existence or truth of those facts and circumstances are to be passed upon as a question of fact; however, when the facts and circumstances are undisputed, when only one inference can reasonably be drawn therefrom and when there is no problem as to credibility, or when certain facts and circumstances have been found to exist, the issue as to whether they amount to probable cause is a question of law”. (People v Oden, supra, at p 384 [emphasis supplied].) Finally, in recognizing our powers to review these determinations, we held that: “Under the process outlined and applied herein, had the Criminal Court, grounded on different inferences or dissimilar credibility considerations, properly made other findings of fact indicating additional bases for probable cause and had its order, in turn, been affirmed by the Appellate Term, this court would be required to review as a question of law whether such facts as then found were sufficient to constitute probable cause.” (People v Oden, supra, at p 386 [emphasis supplied].)

Thus, reaching the question of law presented on this appeal, I would hold that the police had a right, based on an objective credible reason, to initiate an inquiry of the driver of the car and request one of the occupants to remain in the car and that such police conduct was justified and reasonable.

Chief Judge Cooke and Judges Jones, Fuchsberg and Meyer concur with Judge Wachtler; Judge Jasen dissents and votes to reverse in a separate opinion; Judge Gabrielli taking no part.

Order affirmed.

      . The officer also testified at the hearing that the rear license plate appeared to be hanging at an angle. On cross-examination, however, he conceded that he had not made any reference to this in his reports or notes or in his prior testimony at the preliminary hearing. The defendant testified that the license plate was located in a recessed compartment above the rear bumper which protruded approximately five inches beyond the point where the license plate rested. He stated that the plate covered the gas tank and when he filled the tank several hours prior to his arrest he observed the plate was properly attached. He also introduced in evidence a photograph of a 1978 Cordoba showing the rear license plate positioned in this manner. In its decision the trial court stated that the condition of the plate had “not been considered by the court in determining the reasonableness of the police conduct as based on Officer Stahl’s testimony, the court concludes that the plate did not cause the initial pursuit or subsequent questioning of the defendants”. The Appellate Division agreed with that finding. Although the People urge that these findings are based on a misunderstanding of the officer’s testimony, we, of course, are bound by the factual determinations, particularly in view of the clear credibility question presented at the hearing (see, e.g., People v Zimbardo, 21 NY2d 15).

        . The record is not clear as to why the vehicle had been impounded, but it appears that it is related to a seizure of the car by the city in connection with a traffic or parking violation. It is conceded that the car had been released to the defendant some time prior to his arrest, and that the police records had not been updated to reflect this.
      There is no indication in the record that the defendants were charged with the robbery which occurred a day or two prior to their arrest.

      . The dissent has characterized this as a self-imposed rule, which of course is often true of judicial precedents. To the extent it is meant to suggest that the rule is somehow less binding than legislative pronouncements, the observation misconceives the nature of the judicial process. Judges, too, are expected to follow the law, even when they have played a part in fashioning the rule.

      . Defendants’ reliance on People v Cantor (36 NY2d 106) is misplaced since defendant therein was forcibly seized when he was surrounded by three policemen while his car was blocked by a police vehicle. There is no doubt that reasonable suspicion is required before a person is forcibly seized. (People v De Bour, 40 NY2d 210, 223.0)

      . It is also beyond dispute that the officers, subsequent to approaching the car for the second time, but before searching it, had reasonable suspicion that criminal activity was afoot after Cabey admitted that he had no license or registration and after it was learned that the Chrysler was an impounded vehicle and that it was similar to the getaway car used in the nearby robbery the previous night involving suspects matching defendants’ descriptions.

      . The majority fears that under this analysis “reasonable suspicion would never be required because every stop begins with a police officer approaching an individual for information.” I find little merit in the majority’s concern for two reasons. First, this analysis criticized by the majority was unanimously adopted and approved by our court in People v De Bour. (40 NY2d 210, 218-219.) Second, it is beyond dispute that reasonable suspicion, rather than an objective credible reason, is required before a person can be legally stopped. (Terry v Ohio, 392 US 1; GPL 140.50, subd 1.) However, in cases such as this, where no stop of a vehicle is involved and the police are merely requesting information, only an objective credible reason for making the request is required. The interference caused by the actions taken by the police during the course of the inquiry must then be balanced against the precipitating and surrounding circumstances in order to determine the reasonableness of those actions. Consequently, the fears voiced by the majority are unfounded.

      . While the majority correctly notes that “Judges, too, are expected to follow the law, even when they have played a part in fashioning the rule”, this sudden respect for stare decisis appears inconsistent when viewed in light of the fact that the “binding” self-imposed rule espoused by the majority exists today only because of the dramatic departure taken by this court in People v Alexander (37 NY2d 202) from the prior rule as it existed for 150 years. (See People v Oden, 36 NY2d 382; People v Ingle, 36 NY2d 413; People v Cantor, 36 NY2d 106; People v Corrado, 22 NY2d 308; Fagnan v Knox, 66 NY 525; Besson v Southard, 10 NY 236; Hasten v Deyo, 2 Wend 424; McCormick v Sisson, 7 Cow 715.) Moreover, since this court has never before hesitated to abandon a self-imposed rule when experience has proved that it no longer fulfills the purposes for which it was adopted, there is certainly no valid reason not to do so here where the result would be to merely return to the time-tested rule as it existed before 1975.


author: Wachtler, J. Meyer, J.

text:
    Insurance Company of North America, Appellant, v Dayton Tool & Die Works, Inc., et al., Defendants, and State Insurance Fund, Respondent. County of St. Lawrence, Appellant, v Travelers Insurance Companies, Respondent, et al., Defendants.
    Argued October 13, 1982
    decided December 8, 1982

      POINTS OF COUNSEL

      Norman Bard and Beth J. Goldmacher for appellant in the first above-entitled action.
    Summary judgment should be granted to plaintiff insurer since the insurance policy specifically excludes “any obligation of the insured to indemnify another.” This exception is not ambiguous and must be given its ordinary meaning which the average policyholder would ascribe to it, in light of a reasonable businessman’s expectations. So viewed the policy exception precludes defense and coverage for any third-party action brought against the insured seeking reimbursement, predicated upon contribution, which is in effect partial indemnification. (Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co. of N. Y., 45 NY2d 551; Green Bus Lines v Consolidated Mut. Ins. Co., 74 AD2d 136; Parfait v Jahncke Serv., 484 F2d 296; C. M., Inc. v Canadian Ind. Co., 482 F Supp 780; Village of Potsdam v Home Ind. Co., 52 AD2d 278; Bremen v United States, 409 F2d 994; Adams v Lindsay, 77 Misc 2d 824; Wattecamps v Artkraft Strauss Sign Corp., 75 Misc 2d 934; Winn v Bratti Assoc., 80 Misc 2d 756.)

      Richard C. Fitzmaurice, Raymond C. Green, Leonard M. Schnitzer, Mark Slotkin and Dennis Drucker for respondent in the first above-entitled action.
    I. An insurance clause excluding coverage of the insured’s indemnity obligations does not exclude third-party claims against the insured for common-law contribution. (Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co. of N. Y., 45 NY2d 551; Albany Truck Rental v New Hampshire Merchants Ins. Co., 75 AD2d 426; Crouse-Hinds Co. v Jones, 66 AD2d 991; Thomas J. Lipton, Inc. v Liberty Mut. Ins. Co., 34 NY2d 356; Breed v Insurance Co. of North Amer., 46 NY2d 351; Riviello v Waldron, 47 NY2d 297; McDermott v City of New York, 50 NY2d 211; D'Ambrosio v City of New York, 55 NY2d 454; Rogers v Dorchester Assoc., 32 NY2d 553; Dallas & Mavis Forwarding Co. v Gleason’s Works, 78 AD2d 966.) II. Plaintiff-appellant’s attempt to create a rule or theory fails to establish any reason to avoid the governing legal principles and fails to establish any reason to overrule those principles. (Kelly v Long Is. Light. Co., 31 NY2d 25; Rogers v Dorchester Assoc., 32 NY2d 553; Sincoff v Liberty Mut. Fire Ins. Co., 11 NY2d 386; Green Bus Lines v Consolidated Mut. Ins. Co., 74 AD2d 136; County of St. Lawrence v Travelers Ins. Cos., 86 AD2d 93; Aetna Cas. & Sur. Co. v Merchants Mut. Ins. Co., 78 AD2d 176; State of New York v County of Sullivan, 54 AD2d 29; Vermont Constr. v Johnson Ind. Painting Contrs., 78 AD2d 317.)
    A. Michael Gebo for appellant in the second above-entitled action.
    I. The term indemnity in the exclusion does not include contribution or apportionment. (Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co. of N. Y., 45 NY2d 551; International Paper Co. v Continental Cas. Co., 35 NY2d 322; Green Bus Lines v Consolidated Mut. Ins. Co., 74 AD2d 136, 52 NY2d 701; Utica Mut. Ins. Co. v Cherry, 38 NY2d 735; Schwamb v Firemen's Ins. Co. of Newark, N. J., 41 NY2d 947; McGroarty v Great Amer. Ins. Co., 36 NY2d 358; Lionel Freedman, Inc. v Glens Falls Ins. Co., 27 NY2d 364; Sturges Mfg. Co. v Utica Mut. Ins. Co., 37 NY2d 69; Government Employees Ins. Co. v Kligler, 42 NY2d 863; Dole v Dow Chem. Co., 30 NY2d 143.) II. The usual meanings of the terms contribution, equitable apportionment and indemnity are not the same. (Kelly v Long Is. Light. Co., 31 NY2d 25; Green Bus Lines v Consolidated Mut. Ins. Co., 74 AD2d 136; Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co. of N. Y., 45 NY2d 551; Anderson v Comardo, 107 Misc 2d 821; Riviello v Waldron, 47 NY2d 297; McDermott v City of New York, 50 NY2d 211; Crouse-Hinds Co. v Jones, 66 AD2d 991.) III. The Green Bus decision does not compel a different result. IV. It would not be unfair or prejudicial to Travelers to compel it to provide coverage. (Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co. of N. Y., 45 NY2d 551.)

      Vincent F. Kirsch for respondent in the second above-entitled action.
    I. The court below correctly ruled that the term “indemnify” as stated in exclusion (j) of the general liability policy included common-law partial indemnification sought in the third-party actions. (Green Bus Lines v Consolidated Mut. Ins. Co., 74 AD3d 136, 52 NY2d 701;
      Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co. of N. Y., 45 NY2d 551; Crouse-Hinds Co. v Jones, 66 AD2d 991; Schiff Assoc. v Flack, 51 NY2d 692; Zandri Constr. Co. v Firemen’s Ins. Co. of Newark, 81 AD2d 106, affd sub nom. Zandri Constr. Co. v Stanley H. Calkins, Inc., 54 NY2d 999; J.G.A. Constr. Corp. v Charter Oak Fire Ins. Co., 66 AD2d 315; County of Monroe v Travelers Ins. Cos., 100 Misc 2d 417; Nassau Roofing & Sheet Metal Co. v Celotex Corp., 70 AD2d 395; Triboro Coach Corp. v State of New York, 72 AD2d 228.) II. The rationale of the court below is justified because of the fact that statutory “contribution” does not alter the contractual provisions and obligations of the parties to this insurance agreement. (Dole v Dow Chem. Co., 30 NY2d 143; D’Ambrosio v City of New York, 55 NY2d 454; Lobello v City of New York, 268 App Div 880, 294 NY 816; Olivia v Gouze, 285 App Div 762, 1 NY2d 811; Johnsen v Gallagher, 28 AD2d 560, 21 NY2d 981; Rogers v Dorchester Assoc., 32 NY2d 553; Bay Ridge Air Rights v State of New York, 44 NY2d 49; Cubito v Kreisberg, 69 AD2d 738, 51 NY2d 900; Klinger v Dudley, 41 NY2d 362.) III. The rationale of the court below is further justified because the insurance contract is to be construed in light of the reasonable expectations and purposes of ordinary businessmen. (Cole’s Rest. v North Riv. Ins. Co., 105 Misc 2d 754; Stainless, Inc. v Employers Fire Ins. Co., 69 AD2d 27, 49 NY2d 924; Abrams v Great Amer. Ins. Co., N. Y., 269 NY 90; Harris v Allstate Ins. Co., 309 NY 72; American Fid. & Cas. Co. v St. Paul-Mercury Ind. Co., 248 F2d 509; Foremost Ins. Co. v Travelers Ins. Co., 54 AD2d 150; Ackerman v Southern Wood Piedmont Co., 409 F Supp 469; Benniefield v Valley Barge Lines, 472 F Supp 314.)
   OPINION OF THE COURT

Wachtler, J.

The question on these appeals is whether an employer’s general liability policy containing an exclusion for “any obligation of the insured to indemnify another because of damages arising out of” personal injury to an employee relieves the carrier of liability when the employer is sued for contribution pursuant to Dole v Dow Chem. Co. (30 NY2d 143). In the County of St. Lawrence case the trial court held the exclusion inapplicable to suits for contribution but the Appellate Division, Third Department, reversed. The county appeals on the basis of the reversal. In the Dayton Tool company case both the trial court and the Appellate Division held for the insured and the carrier appeals by leave of the Appellate Division.

THE COUNTY OF ST. LAWRENCE CASE

In August, 1979 George Donnelly, employed by St. Lawrence County in the CETA program, was injured while operating a saw in the course of his employment at a local college. He sued the college and Rockwell International Power Tools, the manufacturer of the saw. They in turn brought third-party actions against the county seeking indemnification or contribution in the event Donnelly recovered in the main action.

The county sent notice of the suit to the defendant, Traveler’s Insurance Co., which had issued a general liability policy to the county in May of 1979. The carrier, however, notified the county that it was disclaiming liability for the “third party lawsuit” pursuant to “Exclusion (j)”. That exclusion states that the policy does not apply “to bodily injury to any employee of the insured arising out of and in the course of his employment by the insured or to any obligation of the insured to indemnify another because of damages arising out of such injury”.

The county then commenced this declaratory judgment action claiming that the carrier is obligated under the policy to defend and indemnify the county in the third-party suit. The case was submitted to the court on stipulated facts.

The trial court held that the indemnity exclusion was inapplicable to third-party actions based on the Dole-Dow doctrine because they seek contribution not indemnification. The court noted that the Appellate Division, Second Department, had reached a contrary result in Green Bus Lines v Consolidated Mut. Ins. Co. (74 AD2d 136), but distinguished the case on the ground that the insurance policy there had gone into effect prior to the Dole decision. Here the court noted that the contract had been issued in 1979 when the case law and legislation initiated by Dole recognized indemnification and contribution as “separate and distinct concepts, with commonly accepted meanings”. Thus the court concluded that the exclusion only relieved the carrier of the obligation to compensate the insured for any recovery based on indemnification. Accordingly, judgment was entered for the plaintiff to the extent of finding that the carrier was obligated to defend the third-party action and to compensate the plaintiff for any recovery based on contribution within the limits of the policy.

The Appellate Division, Third Department, reversed noting that (86 AD2d, at p 94) “[precisely identical exclusionary language was considered in” the Green Bus Lines case, and was held to relieve the carrier of liability for this type of third-party action. The court observed: “While plaintiff would have us distinguish Green Bus on the ground that the insurance policy there was issued before the Dole decision, a factor given some weight by the court, the overriding consideration was that ‘[a] Dole recovery * * * is merely a form of indemnification which [the exclusion clause] should be construed to include within its ambit’ ”. (86 AD2d, at p 95.)

THE DAYTON TOOL CASE

In June, 1978 Hans Brandt, an employee of Dayton Tool & Die Works, lost his left arm while operating a power press manufactured by Gulf and Western Corp. He sued the manufacturer who in turn brought a third-party action against Dayton Tool seeking full indemnity or, in the alternative, contribution for any recovery Brandt may obtain

Dayton Tool sent notification of the suit to the Insurance Co. of North America which had issued a general liability policy to the employer in September of 1977. The carrier subsequently disclaimed liability relying on “Exclusion (j)”, which is identical to the clause at issue in the companion case. The carrier also commenced this declaratory judgment action claiming that because of the exclusion it was not obligated to defend or provide coverage in the third-party action.

The carrier moved for summary judgment but the court granted summary judgment to the insured employer holding that the “indemnity exclusion” did not apply to suits for contribution. The court made no effort to distinguish the Green Bus Lines case and dismissed the holding as being “in direct contravention” of two decisions of this court (Rock v Reed-Prentice Div. of Package Mach. Co., 39 NY2d 34; Riviello v Waldron, 47 NY2d 297) which it held clearly show “that New York courts have traditionally treated contribution and indemnification as separate issues”.

The Appellate Division, First Department, affirmed, without opinion, and, as noted, granted the insurance company leave to appeal to this court.

Initially we note that the insurance companies’ arguments do not rest on the first portion of the exclusion which provides that the policy does not apply “to bodily injury to any employee of the Insured arising out of and in the course of his employment by the Insured”. Although it has been urged in other cases that an employer’s liability in a third-party action based on the Dole case is “ultimately” for bodily injury to an employee and thus encompassed within this portion of the exclusion, or a similarly worded provision, we have found such a broad interpretation unacceptable. The reason, we have noted, is because conceptually the Dole case does not render the employer directly responsible to the employee; it only affects the employer’s liability to third parties (Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co. of N. Y., 45 NY2d 551, 556-558).

Thus in the cases now before us we are only concerned with the second portion of the exclusion which exempts from coverage “any obligation of the insured to indemnify another because of damages arising out of such injury”. Although this speaks only of indemnity and makes no express reference to contribution the carriers urge that it nevertheless includes any obligation on the part of the insured to reimburse a third party pursuant to the Dole case. This argument is based on the assumption that the Dole decision merely established a right of “partial indemnification” and stresses the fact that in the Dole opinion we indicated that the newly announced right would have this “effect” (see Dole v Dow Chem. Co., supra, at p 147).

A similar observation was made in the Green Bus Lines case where, as noted, the Appellate Division, Second Department, held that an identically worded exclusion relieved the insurance company of any obligation to defend or pay a third-party claim based on Dole. That conclusion, however, was qualified by the fact that the policy in that case had gone into effect in 1970, two years prior to the Dole decision, so that the parties could not be said to have specifically intended to either include or exclude liability for such a suit. Under the circumstances the Appellate Division there found that the “indemnity exclusion” was not ambiguous because it evidenced a clear intent “to exclude from coverage the only type of derivative liability which the law then provided * * * namely common-law full indemnity”. (74 AD2d, at p 151.) The court also observed that even after the Dole decision was handed down, “during the term of the policy”, some authorities concluded that it represented an extension of the judicial indemnity theory and not an alteration of the rules of contribution which were then fixed by statute.

Whatever confusion may have initially existed concerning the nature of a Dole apportionment was dispelled by the time the policies in the cases now before us were issued. In 1973 we noted in Rogers v Dorchester Assoc. (32 NY2d 553, 564-566) that the right of apportionment announced in Dole had no application to a claim for indemnity. In 1974 the Legislature codified the Dole principle by expressly expanding the right of contribution (L 1974, ch 742; CPLR 1402; see, also, General Obligations Law, § 15-108). Indeed this is not the first time it has been urged in this court that Dole merely establishes a right of partial indemnification. In 1976 we rejected such an argument in Rock v Reed-Prentice Div. of Package Mach. Co. (39 NY2d 34, supra). There we discussed at some length the distinction between contribution and indemnity and explained that the reference to “partial indemnification” in the Dole decision served only as an analogy. Thus when the policies at issue on these appeals were issued in 1977 and 1979 contribution was not recognized as a form of indemnification and a clause which only excluded from insurance coverage an obligation to “indemnify” would not also exclude liability for a claim seeking apportionment under the Dole case.

The . carriers argue nevertheless that the history of the clause shows that it was intended to exclude coverage for Dole recoveries. They note that within a few months of the Dole decision it was submitted to the Superintendent of Insurance as an amendment to the standard exclusion, accompanied by a memorandum indicating that it was intended “to avoid court decisions that have held * * * that the exclusion does not apply to situations where an employee of the insured recovers against a third party who in turn brings an action against the insured”. The change was approved effective January 1,1973. The employers, on the other hand, claim that the amendment was one of many changes adopted nationwide in general liability policies in 1972, and cannot be said to have been specifically intended to exclude contribution claims since most States did not recognize a right of contribution at that time. Indeed, as the Green Bus Lines case shows, the identical clause was employed in this State prior to Dole, and thus was evidently designed to eliminate the risk of common-law indemnification claims, the only basis for third-party liability then recognized at law. In any event the intent of the insurance company is not controlling when, as here, the words used in the policy do not adequately convey that intent.

Finally the carriers note that an insurance policy is not a statute and its terms should generally be construed as they would be understood by the ordinary person or customer (see, e.g., Johnson Corp. v Indemnity Ins. Co. of North Amer., 7 NY2d 222). It is suggested that the average business person would consider the word “indemnify” to be synonymous with “reimburse” and “would, upon reading the policy be convinced that no coverage existed for third party actions for injuries to his employees, without regard to the theory of liability there asserted”. If that is what was meant it could easily have been stated in those terms. Undoubtedly such a statement would have been more informative to the layman than the cryptic use of the term “to indemnify” assuming, as the carrier claims, that the exclusion was intended to be read in ordinary terms, and not in any technical legal sense. But, even accepting that assumption, the interpretation suggested is not the only reasonable interpretation of the exclusion clause. In common parlance “to indemnify” also means “to insure”, thus conveying the impression, even to one not familiar with the law, that the exclusion would only apply if the employer had agreed to insure another’s losses.

In sum, the broad reading suggested by the carriers does not accurately state the law (cf. Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co. of N. Y., supra, at pp 556, 558) and, at best, simply reveals a potential ambiguity in the contract which, under settled principles, must be resolved against the insurance companies which drafted the policy (see, e.g., Thomas J. Lipton, Inc. v Liberty Mut. Ins. Co., 34 NY2d 356).

Accordingly, in County of St. Lawrence v Travelers Ins. Cos., the order of the Appellate Division, Third Department, should be reversed, with costs, and the order of the Supreme Court reinstated. In Insurance Co. of North Amer. v Dayton Tool & Die Works, the order of the Appellate Division, First Department, should be affirmed, with costs.

Meyer, J.

(dissenting). The majority’s conclusion that exclusion of “any obligation of the insured to indemnify another because of damages arising out of * * * [bodily] injury [to an employee of the insured]” does not exclude an obligation by way of contribution for such an injury rests on three premises: (1) contribution differs from indemnification (at pp 497-498); (2) the exclusion was not written with specific reference to contribution (at p 498); and (3) “indemnify” is ambiguous because it encompasses the concept of “insure” (at p 499). Although I agree with the first premise as an abstract proposition of law, both the first and the second premises are irrelevant to the construction of the clause in question, and the third is mistakenly applied by the majority there being no true ambiguity in the context of the exclusion and the common speech of men. I, therefore, respectfully dissent.

At issue is not whether indemnity differs from contribution in the lexicon of the law, but whether in “the reasonable expectation and purpose of the ordinary business man” the obligation to contribute to another part of the money paid by him as damages for bodily injury to an employee of the insured is encompassed within the concept of “indemnify” as used in exclusion (j)- The quoted phrase is taken from the oft-cited opinion in Bird v St. Paul Fire & Mar. Ins. Co. (224 NY 47). The issue there was whether damage to a vessel from concussion caused by an explosion resulting from a fire in a railroad freight yard some distance from the vessel was within the coverage of a fire insurance policy on the vessel. The Appellate Division had held space not a factor in causation. Overruling that conclusion and holding that the policy did not cover the loss, Judge Cardozo, in reasoning which puts the issue in the present case in proper focus, stated (224 NY, at pp 51-52):

“The problem before us is not one of philosophy (Pollock Torts [10th ed.], p. 37). If it were, there might be no escape from the conclusion of the court below. General definitions of a proximate cause give little aid. Our guide is the reasonable expectation and purpose of the ordinary business man when making an ordinary business contract. It is his intention, expressed or fairly to be inferred, that counts. There are times when the law permits us to go far back in tracing events to causes. The inquiry for us is how far the parties to this contract intended us to go. The causes within their contemplation are the only causes that concern us.

ijí ÍJÍ

“This view of the problem of causation shows how impossible it is to set aside as immaterial the element of proximity in space. The law solves these problems pragmatically. There is no use in arguing that distance ought not to count, if life and experience tell us that it does. The question is not what men ought to think of as a cause. The question is what they do think of as a cause. We must put ourselves in the place of the average owner whose boat or building is damaged by the concussion of a distant explosion, let us say a mile away. Some glassware in his pantry is thrown down and broken. It would probably never occur to him that within the meaning of his policy of insurance, he had suffered loss by fire. A philosopher or a lawyer might persuade him that he had, but he would not believe it until they told him” (emphasis in original).

Likewise here, it is the pragmatic view of the ordinary businessman that determines the result.

Because that is the rule, it is no more material to decision of this case that in the lexicon of the law contribution is distinguishable from indemnity than were the general definitions of proximate cause to which the Bird decision referred material to its determination. Here, as there, it is what is within the contemplation of the average man who speaks of an obligation to indemnify that controls.

For like reason I agree that what the carriers said to the Superintendent of Insurance when exclusion (j) was revised is not controlling. What is determinative is what a purchaser of the policy versed only in the common speech of man and without knowledge of what had been presented to the superintendent would understand from the language used. Moreover, the rule is the same whether the language in question is in a policy provision describing coverage or an exception from coverage (Bird v St. Paul Fire & Mar. Ins. Co., 224 NY 51, 55, supra; Lionel Freedman, Inc. v Glens Falls Ins. Co., 27 NY2d 364; North Amer. Iron & Steel Co. v Isaacson Steel Erectors, 36 AD2d 770, 771, affd 30 NY2d 640; see I Q Originals v Boston Old Colony Ins. Co., 58 NY2d 651, affg 85 AD2d 21; Hellert v Travelers Ins. Co., 52 AD2d 751).

For the majority it is a sufficient answer to the pertinent inquiry that an ambiguity exists because “[i]n common parlance ‘to indemnify’ also means ‘to insure’ ” (at p 499). While not intending to engage in a battle of dictionaries, I find it of some significance that many dictionaries do not include “insure” among the definitions of “indemnify” and that Webster’s New Dictionary of Synonyms includes under “indemnify” only “reimburse, recompense, compensate, remunerate, pay, repay, satisfy.” More important, however, is the fact that those dictionaries that do use the word “insure” do so only as but one of several meanings and then only in a secondary sense consistent with the connotation of “reimbursement” or “payment”: “to protect against or keep free from loss, damage, etc.; to insure.” Instructive is Webster’s New Dictionary of Synonyms, which states (at p 599): “Indemnify implies promised or actual reimbursement for loss (as by fire), for injury (as by accident), or for damage (as by war or disaster) [the basic purpose for which insurance exists is to indemnify persons subject to loss when such loss occurs — Hedges].” Thus, “insure” in truth creates no ambiguity for it carries no connotation of insuring a risk; indeed it speaks to no more than reimbursement for loss, whether for all or only for part. Put another way, that insurance indemnifies does not mean that an ordinary businessman would read exclusion (j)’s reference to “any obligation * * * to indemnify” (emphasis supplied) not to exclude from coverage an obligation on his part to reimburse a joint tort-feasor for a share of the damages paid an employee of the insured, as well as to reimburse one held vicariously liable for the full account of the damages.

Realistically the ordinary businessman purchasing both liability insurance and a separate workers’ compensation policy, as did Dayton, would not think twice about the matter because he would, if he thought about it at all, be satisfied that whatever exclusion (j) of the liability policy excluded, coverage B of the compensation policy would protect against (cf. Lionel Freedman, Inc. v Glens Falls Ins. Co., 27 NY2d 364, 368-369, supra; North Amer. Iron & Steel Co. v Isaacson Steel Erectors, 36 AD2d 770, affd 30 NY2d 640, supra). That the County of St. Lawrence self-insures its compensation liability does not require a different conclusion as to it; the common understanding of the word “indemnify” does not vary with whether other insurance is available, the more so because it is “any obligation * * * to indemnify” (emphasis supplied) which is excluded. To paraphrase the holding in Lionel Freedman, Inc. (27 NY2d, supra, at p 368): The exclusion, considered as a whole, indicates that the term “indemnify” should be read in the sense of reimburse or repay “and the reasonable man reading the policy would draw no other conclusion.”

Nothing in Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co. of N. Y. (45 NY2d 551) or in our denial of leave in the Green Bus Lines v Consolidated Mut. Ins. Co. case (52 NY2d 701) militates against the conclusion here reached. Graphic Arts dealt with a differently worded exclusion of “any obligation for which the insured or any carrier as his insurer may be held liable under any workmen’s compensation * * * law” (45 NY2d, at pp 556-557) and we held simply that “the Workers’ Compensation Law does not require the employer to contribute to a nonemployee joint tort-feasor” (id., at p 558). And as the majority footnote agrees, our denial of leave in Green Bus Lines is without precedential value, either way.

Because the rules governing construction of exclusion (j) allow for no other conclusion than that the obligation to indemnify for damages resulting from injury to an employee are not within the general liability coverage whether that obligation be by way of contribution or indemnification, I would reverse and grant plaintiff’s motion for summary judgment in the Dayton Tool case and affirm in the County of St. Lawrence case.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Fuchsberg concur with Judge Wachtler; Judge Meyer dissents and votes to affirm in a separate opinion.

In Insurance Co. of North Amer. v Dayton Tool & Die Works: Order affirmed, with costs.

In County of St. Lawrence v Travelers Ins. Cos.: Order reversed, with costs, and order of Supreme Court, St. Lawrence County, reinstated.

      . Although we subsequently denied the insured’s motion for leave to appeal in that case (52 NY2d 701), that denial, of course, is entitled to no precedential value (Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284, 297-298). We note, however, that in seeking leave Green Bus Lines did not contend that the Appellate Division erred in equating contribution with indemnity under the peculiar facts of that case. It urged instead that the exclusion only applied to obligations to indemnify and not to claims for indemnification, and thus did not apply to this case because there had been a judgment in the defendant’s favor in the main action. It was also urged that the Appellate Division erred in affirming on a theory different from that relied on by the trial court.

      . (See, e.g., Webster’s New World Dictionary [2d Coll ed (1970)]; American Heritage Dictionary of the English Language [1970]; Longman Dictionary of Contemporary English [1978].)

      . (See, e.g., Webster’s Third New International Dictionary; Webster’s New Collegiate Dictionary; Black’s Law Dictionary [Rev 4th ed]; Black’s Law Dictionary [5th ed].)

      . (Webster’s New World Dictionary of the American Language [2d Coll ed].) Likewise the American Heritage Dictionary of the English Language includes as one meaning “To protect against possible damage, legal suit, or bodily injury; to insure.”

      . “The words ‘damages because of bodily injury by accident or disease, including death at any time resulting therefrom,’ in coverage B include damages for care and loss of services and damages for which the insured is liable by reason of suits or claims brought against the insured by others to recover the damages obtained from such others because of such bodily injury sustained by employees of the insured arising out of and in the course of their employment.”