text:
    In the Matter of Mary Massa, Appellant, v City of Kingston et al., Respondents.
    Submitted March 17, 1997;
    decided May 6, 1997
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed Supreme Court’s order denying reconsideration, dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


source: Caselaw Access Project

license: Public Domain

text:
    [681 NE2d 1279, 659 NYS2d 833]
    In the Matter of Robert Wahl, Respondent, v Board of Trustees of the New York City Fire Department et al., Appellants.
    Decided May 8, 1997

      APPEARANCES OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (Fay Ng of counsel), for appellants.

      Blau, Kramer, Wactlar & Lieberman, P. C, Jericho (Edward S. Wactlar of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the petition dismissed.

There was credible evidence before the Board of Trustees of lack of a causal relationship between petitioner’s service-related injury and his disabling degenerative lumbar spine condition, in the form of the Medical Board’s record-based, rational medical explanation and the testimony of the Department’s Chief Medical Officer based upon an interpretation of the medical reports and MRI film (see, Matter of Meyer v Board of Trustees, 90 NY2d 139 [decided today]). The fact that the Medical Board did not ascertain the genesis of petitioner’s long-standing and progressive disc disease does not invalidate its finding that this disabling condition was not causally connected to the service injury (see, Matter of Drayson v Board of Trustees, 37 AD2d 378, 381, affd 32 NY2d 852).

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine, Ciparick and Wesley concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.


text:
    [681 NE2d 1280, 659 NYS2d 834]
    Peter H. Sharp et al., as Executors of Peter J. Sharp, Deceased, Appellants, v Angela Norwood et al., Respondents.
    Argued March 25, 1997;
    decided May 8, 1997
    APPEARANCES OF COUNSEL

      Belkin, Burden, Wenig & Goldman, L. L. P., New York City (Magda L. Cruz and Sherwin Belkin of counsel), for appellants.

      Robert E. Levy, New York City, for Angela Norwood, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the. Appellate Division should be affirmed, with costs.

Petitioners, owners of shares in a cooperative building in which respondent resides as a rent-controlled tenant, instituted this summary holdover proceeding to recover possession of the apartment (see, RPAPL 711 [1]; CCA 204). Petitioners claimed that respondent’s chronic tardiness in meeting her monthly rental obligations constituted a "nuisance” warranting eviction pursuant to the New York City Rent and Eviction Regulations (see, 9 NYCRR 2204.2 [a] [2] [tenant may be evicted where "(t)he tenant is committing or permitting a nuisance in such housing accommodations”]).

Civil Court granted respondent’s motion to dismiss the petition, holding that petitioners failed to state a claim of nuisance. The Appellate Term reversed and remitted for trial, on the ground that "[c]hronic late payment and nonpayment of rent may constitute a nuisance warranting eviction if not adequately explained by the tenant.” After a trial, Civil Court again dismissed the petition, concluding that petitioners did not prove any conduct by respondent that "would rise to the level of nuisance behavior.” The Appellate Term, with one Justice dissenting, affirmed for the same reason. At the next level of appellate review, the Appellate Division affirmed, with one Justice concurring separately and two Justices dissenting. The Appellate Division then granted petitioners leave to appeal to this Court (see, CPLR 5602 [b] [2] [i]).

We agree that petitioners failed to prove their claim of nuisance. The specific harm petitioners claimed to have suffered as a result of respondent’s conduct was that they were repeatedly forced to institute nonpayment proceedings and to serve rent demands on respondent to collect chronically late rental payments. While these facts might have supported an eviction proceeding on the ground that respondent violated a "substantial obligation” of her tenancy, petitioners did not assert this ground in their holdover petition (see, 9 NYCRR 2204.2 [a] [1]; Carol Mgt. Corp. v Mendoza, 197 AD2d 687). Having opted to pursue their remedy in the context of a nuisance case, petitioners were required to establish that respondent’s conduct "interfere^] with the use or enjoyment” of their property (see, e.g., Copart Indus. v Consolidated Edison Co., 41 NY2d 564, 568). Petitioners failed, however, to offer any evidence on this issue. Therefore, the holdover petition was properly dismissed on the merits for lack of proof.

We need not and do not decide whether chronic late payment or nonpayment of rent, when combined with aggravating circumstances, could ever support an eviction proceeding for a "nuisance” within the meaning of the New York City Rent and Eviction Regulations.

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine, Ciparick and Wesley concur.

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Anonymous, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted March 24, 1997;
    decided May 8, 1997
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution and are not orders of the type provided for in CPLR 5602 (a) (2).


text:
    Belgrave Owners, Inc., Respondent, v OR Holding Corp. et al., Appellants.
    Submitted March 10, 1997;
    decided May 8, 1997
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the January 12, 1996 Supreme Court order insofar as it denied renewal and dismissed the appeal from that Supreme Court order insofar as it denied reargument, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for a stay dismissed as academic.


text:
    Jeffrey Falk, Appellant, v Anesthesia Associates of Jamaica, Defendant, and Antonietta Morisco et al., Respondents.
    Submitted April 14, 1997;
    decided May 8, 1997
   Motion for reargument dismissed as untimely (see, 22 NYCRR 500.11 [g] [3]). [See, 89 NY2d 1031.]


text:
    In the Matter of Hazeltine Corporation, Respondent, v Board of Assessors et al., Appellants.
    Submitted March 31, 1997;
    decided May 8, 1997
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    Evelyn Kannatt et al., Appellants, v Valley Forge Insurance Company, Inc., Respondent.
    Submitted March 31, 1997;
    decided May 8, 1997
   Motion for reargument dismissed as untimely (see, 22 NYCRR 500.11 [g] [3]). [See, 89 NY2d 982; 88 NY2d 1062.]


text:
    Abraham Leitner et al., Appellants, v Michael Oberlander et al., Defendants and Third-Party Plaintiffs-Respondents. Freeform Built, Ltd., Third-Party Respondent.
    Submitted February 24, 1997;
    decided May 8, 1997
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]; 2103 [b] [2]).


text:
    Robert D. O’Connell et al., Respondents, v Schlegel Corporation et al., Defendants. Thomas W. O’Connell, Appellant. Thomas W. O’Connell, Appellant, v Mitchell T. Williams, Respondent. (And Another Action.)
    Submitted March 7, 1997;
    decided May 8, 1997
   On the Court’s own motion, appeal taken from the Appellate Division order affirming Supreme Court’s order dated September 15, 1995, dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion, insofar as it seeks leave to appeal from the Appellate Division order affirming Supreme Court’s order denying Thomas O’Connell’s motion for renewal and resettlement and granting Mitchell Williams’ motion to quash a subpoena duces tecum, dismissed upon the ground that that order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied. z

Judge Wesley taking no part.


text:
    The People of the State of New York, Respondent, v Kenneth R. Augustine, Appellant.
    Submitted April 21, 1997;
    decided May 8, 1997
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order of the Appellate Division entered in this criminal action (see, NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    Abuwi M. Waheed, Appellant, v Gordon Keit, Respondent.
    Submitted March 31, 1997;
    decided May 8, 1997
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies from the nonfinal Appellate Division order entered in this action commenced in the Civil Court of the City of New York (NY Const, art VI, § 3 [b] [7]; CPLR 5601). Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion for leave to appeal from the nonfinal Appellate Division order entered in this action commenced in the Civil Court of the City of New York (NY Const, art VI, § 3 [b] [7]; CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    Abuwi M. Waheed, Appellant, v Steven Swantek, Respondent.
    Submitted March 31, 1997;
    decided May 8, 1997
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies from the nonfinal Appellate Division order entered in this action commenced in the Civil Court of the City of New York (NY Const, art VI, § 3 [b] [7]; CPLR 5601). Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion for leave to appeal from the nonfinal Appellate Division order entered in this action commenced in the Civil Court of the City of New York (NY Const, art VI, § 3 [b] [7]; CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    Douglas Waterbury, Respondent, v Security Mutual Insurance Company, Appellant, and McLaughlin-Kehoe Associates, Inc., Respondent.
    Submitted March 17, 1997;
    decided May 8, 1997
   Motion for leave to appeal dismissed upon the ground that movant is not a party aggrieved (see, CPLR 5511).


text:
    Stan Weaver, Appellant, v Essex Owners Corporation et al., Respondents. (Action No. 1.) Stan Weaver, Appellant, v National Management LLC et al., Respondents. (Action No. 2.)
    Submitted March 24, 1997;
    decided May 8, 1997
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed so much of Supreme Court’s April 26,1996 order as dismissed the National Management action, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portion of the order sought to be appealed from does not finally determine the actions within the meaning of the Constitution.


text:
    B. Clive Wood, Appellant, v Ingrid Wood, Respondent.
    Submitted March 17, 1997;
    decided May 8,1997
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    [681 NE2d 1299, 659 NYS2d 852]
    In the Matter of W. Joseph Embser.
    Decided May 13, 1997
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable W. Joseph Embser is suspended, with pay, effective immediately, from the office of Justice of the Wellsville Town Court, Allegany County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

Concur: Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine and Ciparick. Taking no part: Judge Wesley.


text:
    [681 NE2d 1282, 659 NYS2d 836]
    Aaron R. Golub, as Executor of Chen Sam, Deceased, et al., Appellants, v Enquirer/Star Group, Inc., Respondent.
    Argued March 24, 1997;
    decided May 13, 1997

      APPEARANCES OF COUNSEL

      Nehemiah S. Glanc, New York City, and Aaron Richard Golub, pro se, for appellants.

      Squadron, Ellenoff, Plesent & Sheinfeld, L. L. P., New York City (Slade R. Metcalf, Mark H. Jackson and Jean Voutsinas of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division dismissing the complaint should be affirmed, with costs.

A statement that plaintiffs’ decedent, a public relations consultant, had cancer was published in the August 27, 1991, issue of defendant’s publication "Star.” Plaintiffs contend that the published statement about decedent having been diagnosed with cancer is defamatory in two respects. First, according to plaintiffs, the nature of cancer is so inextricably intertwined with the thought of impending death that clients would lose confidence in the ability of plaintiffs’ decedent to supply public relations services, thereby injuring her in her business. Alternatively, plaintiffs argue that cancer is, or has become associated with, a condition odious enough to drive away decedent’s clients in disgust or fear. Plaintiffs put forth no proof of damages or actual harm resulting from the complained of publication.

As we stated in Aronson v Wiersma (65 NY2d 592), "[w]hether particular words are defamatory presents a legal question to be resolved by the court in the first instance * * * and if not reasonably susceptible of a defamatory meaning, they are not actionable and cannot be made so by a strained or artificial construction” (id., at 593-594). Generally, a written statement may be defamatory "if it tends to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number of the community” (Mencher v Chesley, 297 NY 94, 100). Even on a professional level, a defamatory meaning may attach to derogatory statements that would cause apprehension about a person’s ability to conduct business.

In that sense, the statement that plaintiffs’ decedent had cancer did not defame her in her trade, business or profession. To be actionable as words that tend to injure another in his or her profession, the challenged statement must be more than a general reflection upon decedent’s character or qualities. Rather, the statement must reflect on her performance or be incompatible with the proper conduct of her business (see, e.g., Liberman v Gelstein, 80 NY2d 429, 436; Aronson, 65 NY2d at, 594; Sanderson v Caldwell, 45 NY 398, 405 [words must "have such a relation to the profession or occupation of the plaintiff that they directly tend to injure him in respect to it”]). Here, however, the statement did not impugn, or even relate to, any particular talent or ability needed to perform in decedent’s profession as a publicist.

Assuming, arguendo, that decedent’s general physical condition related to a "matter of significance and importance” in her work (Prosser and Keeton, Torts § 112, at 791 [5th ed]), there is no defamatory meaning attached to the statement at issue which would imply that decedent is incompetent, incapable or unfit. As stated by the Third Circuit in Chuy v Philadelphia Eagles Football Club (595 F2d 1265), "[p]ersons afflicted with cancer or other serious diseases, whether debilitating only or ultimately fatal, frequently carry on their personal or professional activities in today’s enlightened world in normal fashion and without any deprecatory reflection whatsoever” {id., at 1282). Looking at the published report in its entirety with the eyes of the average reader, as we must {see, Aronson, 65 NY2d, at 594), the reported cancer diagnosis of decedent who was allegedly "determined to fight this illness,” does not connote an inability to service her public relations clients.

Similarly, plaintiffs may not prevail on their alternative argument that the published statement is susceptible of imputing a loathsome disease to decedent. Cancer does not fall into the category of a loathsome disease since it "is neither contagious nor attributed in any way to socially repugnant conduct” (see, Chuy, 595 F2d, at 1281). Furthermore, the record here supports the conclusion of the Appellate Division that "it cannot be said that society as a whole views” cancer as directly associated with any disease which might conceivably be characterized as "loathsome.”

Finally, because the challenged statements were not defamatory as made against decedent personally, the claims of the corporate plaintiff must necessarily fall.

Chief Judge Kay and Judges Titone, Bellacosa, Smith, Levine, Ciparick and Wesley concur.

Order affirmed, with costs, in a memorandum.


text:
    [681 NE2d 1283, 659 NYS2d 837]
    The People of the State of New York, Respondent, v Robert Miller, Appellant.
    Argued March 20, 1997;
    decided May 13, 1997

      APPEARANCES OF COUNSEL

      Alan S. Axelrod, New York City, and Daniel Greenberg for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Robert M. Raciti and Norman Barclay of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted, after a jury trial, of second degree robbery. Defendant was with three companions when he was pointed out to police officers by the complainant, a cab driver, as the person who had robbed him shortly before. All four men were frisked but defendant’s companions were released. Two of defendant’s companions — his alibi witnesses at trial — followed defendant and the arresting officers to the station house. According to an alibi witness, the witnesses tried to inform police officers at the station house that defendant had been in their company at a night club and, therefore, could not have committed any crime, but "no one would listen.” Two police officers disputed this testimony, claiming that the witnesses never attempted to provide any exculpatory information.

Prior to the commencement of the defense case, the Trial Judge ruled that the People could question defendant’s alibi witnesses about an aborted meeting with the trial assistant. The witnesses had gone with defense counsel to inform the District Attorney that they had information that would exculpate defendant. However, the witnesses refused to speak with the trial assistant outside the presence of defense counsel. There was no representation that the condition set by the witnesses was at the request or instruction of defense counsel. Perceiving a conflict of interest, the trial assistant ended the meeting and asked the witnesses to return with their own counsel. They never did.

On appeal, defendant contends that impeachment of his alibi witnesses for their failure to provide exculpatory information at the arrest scene, at the station house and at the aborted meeting was improper. Defendant’s contention must be measured against the rule articulated in People v Dawson (50 NY2d 311), in which this Court stated that a proper foundation may be laid for cross-examination of an alibi witness about his or her failure to come forward prior to trial by showing that the witness (i) was aware of the nature of the charge pending against the defendant; (ii) had reason to recognize that he or she possessed exculpatory information; (iii) had a reasonable motive for acting to exonerate the defendant; and (iv) was familiar with the means of making such information available to law enforcement authorities (50 NY2d, at 321, n 4).

Defense counsel did not object on Dawson grounds to the questioning by the prosecutor regarding the witnesses’ silence at the arrest scene and at the station house, thus failing to preserve the issues for our review. A proper Dawson foundation was laid, however, for the cross-examination of defendant’s alibi witnesses concerning the third alleged opportunity they had to inform law enforcement authorities of defendant’s alibi, the aborted interview with the Assistant District Attorney, wherein the witnesses refused to speak with the trial assistant outside the presence of defense counsel.

At this interview there was no representation made that defense counsel had directed the witnesses not to speak with the trial assistant unless she was present (see, Dawson, supra, 50 NY2d, at 323). The witnesses testified that they chose not to speak with the assistant because they did not feel comfortable. That there may be an explanation for the failure to come forward is not a reason to exclude questioning on the subject, provided a proper foundation has been laid (see, Dawson, supra, 50 NY2d, at 322). "As is true in any instance in which impeachment evidence is offered, the trier of fact may reasonably be expected to weigh the available information and determine for itself whether the witness’ trial testimony is consistent with his prior behavior and assertions” (id.). Thus, the witnesses’ actions were adequately explained to the jury. Moreover, the Trial Judge provided the appropriate limiting instructions with regard to the impeachment value of the witnesses’ failure to come forward before trial (see, id., at 322) and defense counsel did not object to these instructions.

The Court has examined defendant’s remaining contentions and finds them to be without merit.

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine, Ciparick and Wesley concur.

Order affirmed in a memorandum.


text:
    Judith C. Battisti, Respondent, v James J. Battisti, Jr., Appellant.
    Submitted April 7, 1997;
    decided May 13, 1997
   Motion for reargument of motion for leave to appeal dismissed as untimely (see, 22 NYCRR 500.11 [g] [3]). [See, 89 NY2d 916.]

Judge Levine taking no part.


text:
    Heinz Bloch, Appellant, v Agustin Rodriguez, Respondent.
    Submitted May 5, 1997;
    decided May 13, 1997
   Appeal, insofar as taken from that portion of the Appellate Division order that affirmed the dismissal of plaintiff’s causes of action for declaratory relief, an accounting, unjust enrichment and damages for breach of a joint venture agreement, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the remaining portion of the Appellate Division order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Robert W. Case, Respondent, v Monroe Community College, Appellant.
    Submitted April 7, 1997;
    decided May 13, 1997
   Motion to amend opinion denied. [See, 89 NY2d 438.]

Judge Titone taking no part.


text:
    Rachel Hausman, Respondent, v Allan Stern, Appellant, et al., Defendants.
    Submitted March 24, 1997;
    decided May 13, 1997
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]; 2103 [b] [2]).


text:
    The People of the State of New York, Respondent, v Dean Lester, Appellant.
    Decided May 13, 1997
   Appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    In the Matter of Sayeh R. et al. Patricia Ann P., Respondent.
    Submitted May 5, 1997;
    decided May 13, 1997
   Motion for leave to appeal dismissed upon the ground that no appeal lies (see, NY Const, art VI, § 3 [b]; CPLR 5602). Motion for a stay, etc., dismissed as academic.


text:
    In the Matter of Sage Realty Corporation et al., Appellants, v Proskauer Rose Goetz & Mendelsohn L. L. P., Respondent.
    Submitted March 10, 1997;
    decided May 13, 1997
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed Supreme Court’s September 30, 1996 order, dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise granted.

Chief Judge Kaye taking no part.


text:
    [681 NE2d 1285, 659 NYS2d 839]
    REPUBLISHED
    In the Matter of the Arbitration between William L. Steck, Jr., Appellant, and State Farm Insurance Company, Respondent.
    Argued March 19, 1996;
    decided April 25, 1996

      APPEARANCES OF COUNSEL

      Lewis & Lewis, P. C., Buffalo (Richard P. Amico of counsel), for appellant.

      Michael T. Hagelin, Buffalo, for respondent.

       Republished corrected decision (see, 88 NY2d 827).

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the petition to stay arbitration denied.

On August 18, 1992, appellant, while driving a vehicle, was seriously injured in an automobile accident. He recovered $300,000 to settle the claim, the maximum coverage of the tortfeasor driver’s insurance policy. Appellant possessed automobile coverage with respondent State Farm Insurance Company, with liability coverage limits of $100,000/$300,000 and underinsurance coverage of $100,000. Respondent denied appellant’s claim for underinsurance coverage, stating that appellant had recovered fully from the other motorist’s policy and that since that policy exceeded appellant’s policy, appellant was not entitled to underinsurance coverage.

On October 15, 1993, appellant served a demand to arbitrate the underinsurance claim. Respondent served a motion to stay arbitration, dated February 15, 1994, more than four months after service of the demand, and sought a permanent stay of arbitration, maintaining that appellant was not entitled to underinsurance coverage. Supreme Court stayed the arbitration, concluding that appellant was not entitled to underinsurance coverage. The Appellate Division affirmed, with one Justice dissenting, finding that where an insured’s policy limits do not exceed the policy limits of the other vehicle, there is no underinsurance coverage.

CPLR 7503 (c) requires a party, once served with a demand for arbitration, to move to stay such arbitration within 20 days of service of such demand, else he or she is precluded from objecting. In Matter of Matarasso (Continental Cas. Co.) (56 NY2d 264), this Court addressed the issue of whether a motion to stay arbitration may ever properly be entertained outside the 20-day period. In Matarasso, the insured served a demand for arbitration upon the respondent Continental Casualty Company (Continental). Continental responded after 60 days and moved for a stay of arbitration on the ground that the parties never agreed to arbitrate. Matarasso claimed that Continental’s failure to respond within the 20-day period of CPLR 7503 (c) precluded the granting of a stay. In our holding, we articulated an exception to the 20-day period of CPLR 7503 (c) concluding:

"a motion [to stay arbitration] may be entertained when, as here, its basis is that the parties never agreed to arbitrate, as distinct from situations in which there is an arbitration agreement which is nevertheless claimed to be invalid or unenforceable because its conditions have not been complied with” (id., at 266).

Here, the parties do not dispute that appellant’s policy contained an agreement to arbitrate. As such, the clear application of the statute and the case law require a reversal in this instance.

Respondent’s argument that because the other vehicle’s insurance exceeds appellant’s insurance, there is no coverage under the underinsurance provisions, relates to whether certain conditions of the contract have been complied with and not whether the parties have agreed to arbitrate. As such, respondent’s contention is outside the exception articulated by this Court in Matarasso and is barred by the CPLR 7503 (c) 20-day period to object to arbitration.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in memorandum.

Order reversed, etc.


author: Fuld, J.

text:
    The People of the State of New York, Respondent, v. Nathan J. Bunis, Appellant.
    Argued December 1, 1960;
    decided January 5, 1961.

      Herald P. Fahringer, Jr., for appellant.
    I. Section 436-d does not protect the public’s health, morals, safety, or welfare. Therefore, it is unconstitutional. (Defiance Milk Prods. Co. v.

      Du Mond, 309 N. Y. 537; People ex rel. Bunis v. Simmers, 13 Misc 2d 1097; Hauser v. North British & Mercantile Ins. Co., 206 N. Y. 455; People ex rel. Duryea v. Wilber, 198 N. Y. 1; People ex rel. Phillips v. Raynes, 136 App. Div. 417, 198 N. Y. 539; People v. Ringe, 197 N. Y. 143; Fisher Co. v. Woods, 187 N. Y. 90; People v. Gillson, 109 N. Y. 389; Trio Distr. Corp. v. City of Albany, 2 N Y 2d 690.) II. For a penal law to be constitutional it must specifically describe the crime so that the public is adequately informed of the conduct prohibited. (United States v. Potter, 56 F. 83; United States v. Cohen Grocery Co., 264 F. 218, 255 U. S. 81; Butterick Pub. Co. v. Federal Trade Comm., 85 F. 2d 522.) III. Section 436-d is void because it interferes with freedom of the press as guaranteed by the United States Constitution and the New York State Contitution. (Smith v. California, 361 U. S. 147; Palko v. Connecticut, 302 U. S. 319; United States v. Carolene Prods. Co., 304 U. S. 144; Thomas v. Collins, 328 U. S. 331; Schware v. Board of Bar Examiners, 353 U. S. 232; Konigsberg v. State Bar, 353 U. S. 252; Slochower v. Board of Educ., 350 U. S. 551; Near v. Minnesota, 283 U. S. 697; Grosjean v. American Press Co., 297 U. S. 233; Roth v. United States, 354 U. S. 476.)

      Carman F. Ball, District Attorney (Leonard F. Walentynowics of counsel), for respondent.
    I. Section 436-d of the Penal Law is a valid exercise of the inherent police powers of the Legislature of the State of New York. (Defiance Milk Prods. Co. v. Du Mond, 309 N. Y. 537; Hegeman Farms Corp. v. Baldwin, 293 U. S. 163; Trio Distr. Corp. v. City of Albany, 2 N Y 2d 690; Butterick Pub. Co. v. Federal Trade Comm., 85 F. 2d 522; Yachting Pub. Co. v. Friedman, 15 Misc 2d 810; Hauser v. North British & Mercantile Ins. Co., 206 N. Y. 455; People ex rel. Duryea v. Wilber, 198 N. Y. 1; People v. Ringe, 197 N. Y. 143; People ex rel. Phillips v. Raynes, 136 App. Div. 417, 198 N. Y. 539; Fisher Co. v. Woods, 187 N. Y. 90; People v. Gillson, 109 N. Y. 389; People v. Cannon, 63 Hun 306, 139 N. Y. 32; People v. Adduci, 176 Misc. 697; Merchants Exch. v. Missouri, 248 U. S. 365; People v. Rueffer, 279 N. Y. 389; People v. Luhrs, 127 App. Div. 634, 195 N. Y. 377.) II. Section 436-d is sufficiently definite for constitutional requirements. III. Section 436-d in no way interferes with the constitutional rights of freedom of speech and freedom of the press. (Smith v. California, 361 U. S. 147.)
   Fuld, J.

Charged with knowingly selling magazines from which the cover or title page had been removed, the defendant, owner of a bookstore in Buffalo, challenged the statute, section 436-d of the Penal Law, on which the charge was based, as unconstitutional. Enacted in 1956 “ to prevent the resale of periodicals once they had been recalled by the publisher” (Memorandum of Assemblyman Steingut, N. Y. Legis. Annual, 1956, p. 25), the section provides, insofar as relevant, that “ Any person who knowingly sells, offers or exposes for sale, (except in bulk as waste paper) any newspaper, magazine, periodical or other publication * * * from which the cover or title page has been removed, or from which the title, trade name, trade mark or other identification mark has been removed or obliterated, is guilty of a misdemeanor. ’ ’

A word of explanation as to the legislative background is necessary. Publishers of a number of magazines sell their product to national distributors who in turn sell them to regional wholesalers and these latter sell them to local retailers. Each of these sales is made on a “ sale or return” basis, it being understood that magazines which are not sold may be returned for full credit. To receive credit for a return, the retailer sends back the magazine itself but, at the wholesale level, to save transportation costs, returns are effected by sending either the cover of the magazine or that portion of it which bears its title. It is, of course, expected that, once the cover has been returned for credit, the coverless magazines will be taken off the market or rendered unsalable as magazines. However, an illicit trade apparently developed: instead of destroying the ‘1 returned ’ ’ periodicals or getting rid of them as waste, wholesalers, or wastepaper dealers who acquired them as waste, sold them to second-hand book dealers who, though aware of the trade practice to which we have referred, retailed them to the public at considerably reduced prices.

Whether the Legislature would have had the competency, in the exercise of the police power, to pass a law proscribing the illicit traffic in magazines returned ” for credit, we need not now consider or decide, for the simple fact is that the statute actually enacted, section 436-d, goes far beyond any such purpose. By absolutely forbidding any person from selling any coverless magazine, regardless of the circumstances under which, or the reasons for which, the cover may have been removed, the Legislature has prohibited unquestionably legitimate sales and rendered criminal conduct that carries not the slightest taint of corruption or impropriety. This it was not privileged to do; its enactment is arbitrary and violative of due process. (See Weaver v. Pabner Bros. Co., 270 U. S. 402; Defiance Milk Prods. Co. v. Du Mond, 309 N. Y. 537; People v. Estreich, 297 N. Y. 910; People v. Kuc, 272 N. Y. 72; People v. Gillson, 109 N. Y. 389; Matter of Jacobs, 98 N. Y. 98.)

The police power is ‘ ‘ very broad and comprehensive ’ ’ and in its exercise ‘ ‘ the conduct of an individual and the use of property may be regulated so as to interfere, to some extent, with the freedom of the one and the enjoyment of the other ”. (Matter of Jacobs, 98 N. Y. 98, 108, supra.) But, in order for an exercise of the police power to be valid, there must be some fair, just and reasonable connection ’ ’ between it and the promotion of the health, comfort, safety and welfare of society. (People v. Gillson, 109 N. Y. 389, 401, supra.) “ The property of a citizen * * * may not be taken from him without rhyme or reason” (Defiance Milk Prods. Co. v. Du Mond, 309 N. Y. 537, 541, supra); a statute may not infringe upon the right of an individual “ to pursue a lawful calling in a proper manner, or * * * deprive a person of his property by curtailing his power of sale, * * * unless this infringement and deprivation are reasonably necessary for the common welfare ”, (People v. Gillson, 109 N. Y. 389, 400, supra.)

What is wrongful is not the sale of coverless magazines, but rather their sale by a vendor who takes part in a scheme to defraud a. magazine publisher. Admittedly, by denominating as criminal all sales, section 436-d necessarily tends to prevent corrupt sales. But, even were we to suppose that it had power to prohibit such corrupt sales, it is unreasonable and beyond the legitimate exercise of the police power for the Legislature to interdict all sales, permissible and illicit alike, in order to prevent those which are illicit. The Legislature may not validly make it a crime to do something which is innocent in itself merely because it is sometimes done improperly, sometimes attended by improper motives or done as part of an illegal scheme. (See People v. Estreich, 297 N. Y. 910, supra; People v. Kuc, 272 N. Y. 72, supra.)

Both the Kuc and Estreich cases involved legislative enactments which, though designed to meet known wrongs, were held unconstitutional because, as written, they punished behavior which was proper and unexceptionable. The Estreich case (297 N. Y. 910, supra), for instance, concerned a statute which made criminal the receipt of stolen goods by a junk dealer regardless of whether he had made reasonable inquiry concerning the goods. The Appellate Division ruled the statute invalid, and we affirmed, on the ground that it violated the due process clause. Since it failed to except from its compass those dealers who act in good faith and innocently acquire stolen goods after making reasonable inquiry, it unconstitutionally punished perfectly proper and legitimate conduct. And in People v. Kuc (272 N. Y. 72, supra), the court declared invalid a local ordinance aimed at preventing interference with the peace, comfort and repose ” of village residents by ‘ ‘ the cries of hawkers of newspapers ’ ’ during late evening hours. The reason the ordinance was invalidated was because its language prohibited not only noisy “ hawking ”, but all sales of newspapers on the village streets after 9:00 p.m. This ordinance ”, wrote the court (pp. 75-78), 1 ‘ goes too far. It does not stop at forbidding hawking. It also forbids absolutely the sale * * * of newspapers on any public street or public place within the limits of the time named. * * # No reasonable grounds explain the extreme lengths to which this ordinance goes.”

So, too, in the case before us; section 436-d, forbidding as it does the sale of all coverless magazines, goes too far and must be stricken as unconstitutional.

The order should be reversed and the information dismissed.

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

Order reversed, etc.


author: Froessel, J.

text:
    The People of the State of New York, Respondent, v. William A. Hamm, Appellant.
    Argued October 20, 1960;
    decided January 5, 1961.

      William H. Pearse, Edtvard J. Mack and Normington Schofield for appellant.
    I. Evidence dehors the record discloses a failure in due process fatal to jurisdiction. (People v. Grogan, 260 N. Y. 138; People v. Mavis, 5 Misc 2d 943; People v. Scott, 3 N Y 2d 148; People v. Mulvey, 206 Misc. 771; People v. Zambounis, 251 N. Y. 94; People ex rel. Davis v. Sheriff of Otsego County, 3 Misc 2d 231; People ex rel. Livingston v. Wyatt, 186 N. Y. 383; People v. Hildebrandt, 308 N. Y. 397; People v. Erickson, 283 N. Y. 210; People v. Strong, 294 N. Y. 930; People v. St. Germain, 302 N. Y. 580.) II. The administrative minutes reveal a deprivation of rights under article VIII of the amendments of the United States Constitution. (People v. Scott, 3 N Y 2d 148; Bolling v. Sharpe, 347 U. S. 497; People v. Abramowitz, 132 Misc. 18.) III. In matters of due process and fair trial, the officer of prosecution serves alike the lawbreaking and law-abiding. (People v. Savvides, 1 N Y 2d 554.) IV. The remedy pursued is proper and the relief sought is lawful and just. (People v. Eastman, 306 N. Y. 658; People v. Sullivan, 3 N Y 2d 196; People v. Richetti, 302 N. Y. 290; Smith v. O’Grady, 312 U. S. 329; People v. Silverman, 3 N Y 2d 200; People v. Koffroth, 2 N Y 2d 807.)

      Raymond C. Baratta, District Attorney (Robert F. Winne of counsel), for respondent.
    I. The County Court properly reversed the lower court and dismissed the application in coram nobis without a hearing. (Matter of Lyons v. Goldstein, 290 N. Y. 19; Matter of Bojinoff v. People, 299 N. Y. 145; People v. Gersewitz, 294 N. Y. 163; People v. Richetti, 302 N. Y. 290; People v. Tomaselli, 7 N Y 2d 350; People v. Hannigan, 7 N Y 2d 317; People v. Freccia, 284 App. Div. 1020; People v. Langan, 303 N. Y. 474; People v. Codarre, 206 Misc. 950, 285 App. Div. 1087; People v. Brown, 7 N Y 2d 359; People v. Sadness, 300 N. Y. 69; People ex rel. Wachowicz v. Martin, 293 N. Y. 361.) II. A sworn information existed, thereby creating the Court of Special Sessions in this instance. III. No information was required here to charge the offense of disorderly conduct. (Matter of Cooley v. Wilder, 234 App. Div. 256; Tenement House Dept. v. McDevitt, 215 N. Y. 160; People v. Fosella, 304 N. Y. 667; People v. Brous, 296 N. Y. 1028; People v. Yerman, 138 Misc. 272; People v. Scott, 3 N Y 2d 148; People v. Jacoby, 304 N. Y. 33; People v. Halling, 203 Misc. 428.) IV. No excessive penalty was imposed in violation of article VIII of the United States Constitution.
   Froessel, J.

During the early morning hours of December 8, 1956, members of the New York State Troopers, together with members of the Beacon City Police Department and of the Dutchess County District Attorney’s office, conducted a gambling raid at No. 478 South Avenue in the City of Beacon. Defendant, who was the Athletic Director of Beacon High School, and had been employed by the Beacon school system for 23 years (short of 1% years to retirement), was among those found on the premises at the time of the raid. When found, he was seated in a room other than the one in which gambling was taking place, eating a sandwich and drinking coffee while waiting for a friend whom he had accompanied to the premises preparatory to returning home. Defendant had never been convicted of any crime, and had never been to those premises before.

All of the defendants apprehended in the raid, including defendant-appellant, were ordered into the room used for the gambling operation and formed into a line for presentation singly to the City Judge, who had been summoned to hold court at the raided premises. At that time, Trooper Herron prepared a penciled longhand unsworn information, which did not state the name of any defendant, charging a violation of subdivision 1 of section 722 of the Penal Law, viz., disorderly conduct. As each defendant appeared before the Judge for arraignment, his name was supplied to the latter from another document, an arrest record made earlier. Defendant pleaded guilty to the charge and was fined $10, which was then paid.

Defendant testified that he was advised by a member of the State Troopers that “ they had worked this thing all out and everybody would be charged with disorderly conduct, you pay $10.00 and go home that “ there won’t be any names in the paper ’ ’; and that he did not realize he was in a court. He stated that he was also advised that 1 £ disorderly conduct wouldn’t bother anybody in Civil or State Service ”.

Defendant also testified that he did not know that he was under arrest and, had he known, he ‘1 certainly would not have pleaded guilty ”. No one told him specifically that he was under arrest, and his understanding of the situation was that the only arrests will be the people who ran the game ’ ’. The City Judge testified that he did not advise defendant that he was under arrest. Trooper Herron also testified that he did not tell defendant individually that he was under arrest, but that all persons present had been told that it was a raid and to be quiet so no one would be hurt. Defendant repeatedly maintained that his sole motive in pleading guilty was to avoid notoriety and save himself and the Board of Education from embarrassment.

Following the pleas and disposition of all of the defendants on the morning of the raid, a typewritten information, identical in form with the penciled information with the exception that it contained the name of defendant-appellant and the allegedly erroneous date of December 9, 1956, was prepared by Trooper Herron, and filed as a permanent record of the court. The penciled information was not filed nor produced until the institution of the coram nobis proceeding.

On December 10, 1956 the school authorities sent defendant a notice of suspension, specifying as the gounds therefor his arrest in a gambling raid, his arraignment and guilty plea and fine of $10. Thereafter defendant was served with a notice of charges and hearing. After hearing testimony on January 17, 1957, the members of the School Board, on January 21, 1957, dismissed defendant from the staff of the Beacon City School District, two members dissenting. The Education Commissioner affirmed, and an article 78 proceeding seeking review is presently pending.

Defendant thereafter made this application in the nature of a writ of error coram nobis in the Beacon City Court of Special Sessions for an order vacating and expunging from the records the judgment of conviction which followed his plea of guilty. The minutes of the administrative hearing were made a part of defendant’s petition, which sought relief on the following grounds: (1) that he did not know that he was under arrest; (2) that he was not advised of his right to counsel and to an adjournment; and (3) that the information was insufficient as a matter of law. On August 4, 1959 the Beacon City Court directed the vacating of the judgment of conviction and of defendant’s plea of guilty, and the rearraignment of defendant.

Both parties appealed from this order to the Dutchess County Court. In reversing the court below and dismissing defendant’s application, the County Court held that coram nobis is not the proper method of testing the sufficiency of the information. Both courts below found on substantial evidence that defendant must have known that he was under arrest, and that he was advised of his rights.

Defendant additionally contends that the administrative action taken against him, namely, his dismissal from the school system, constitutes an excessive punishment and deprivation of due process guaranteed under the Eighth Amendment to the Constitution of the United States. Such administrative action is not before us on this appeal.

This leaves for consideration defendant’s primary claim that the so-called information to which he was asked to plead was a complete nullity. It is well settled that coram nobis is not available as a means of attack upon a defective information where such defect is apparent on the record (People v. Eastman, 306 N. Y. 658; People v. Sadness, 300 N. Y. 69, 74). In the case at bar, however, the invalidity of the information to which defendant pleaded guilty could only be shown by reference to matters dehors the record—viz., the minutes of the administrative hearing and the invalid information itself.

Had his attorney sought to appeal, it would have served no purpose whatever, for he would not have found in the court record the invalid penciled draft to which defendant pleaded, and which remained in the possession of the State Trooper, but would only have discovered the typewritten information prepared after defendant had pleaded guilty. Not until after the administrative hearing, and after the time to appeal had expired, did defendant or his attorney first learn that there had been a substitution of a typewritten information in proper form, but prepared after conviction, for a suppressed invalid penciled unsworn draft charging no named person. Under these circumstances coram nobis is not only the proper remedy, but the exclusive one, available to defendant.

In answering defendant’s argument, respondent urges first that there was a sufficient information consisting of the penciled longhand paper prepared by Trooper Herron and the arrest report from which the name of each defendant was read as he appeared for arraignment. Furthermore, respondent contends that there is no requirement of a written information in cases of offenses, such as this one, as distinguished from misdemeanors. These arguments are without merit and the information was a complete nullity-—a mere scrap of paper.

In the first place, although the entry in the criminal docket states that the information, was “ subscribed and sworn to ” by Trooper Herron, the testimony of the City Judge refutes this. He stated that it had not been sworn to, but “had just been written out, and Sergeant Herron was sitting there alongside of me ’ ’. He said that he read what was on that sheet of paper to each defendant, and that the name was supplied to him by Sergeant Herron. The information which appears in the record as having been sworn to before him was actually prepared and sworn to at some later time, and was not in existence at the time of this defendant’s arraignment. Furthermore, there is nothing on either the unverified penciled draft or the arrest report to indicate that they were to be read together.

Secondly, although there may be greater informality when dealing with offenses (People v. Grogan, 260 N. Y. 138, 141-142; People v. Jacoby, 304 N. Y. 33, 45), there must at the very least be some pleading charging the defendant with a crime or offense. ‘ The requirement that an indictment and an information must state the crime with which a defendant is charged, and the particular acts constituting that crime is more than a technicality; it is a fundamental, a basic principle of justice and fair dealing as well as a rule of law” (People v. Zambounis, 251 N. Y. 94, 97; emphasis supplied). This requirement is not met by an information which does not state the name of the person charged. To be sufficient, an information must be directed against some person (People v. Knapp, 152 Misc. 368, 370).

Bather than dispense with the basic requirement of an information, as respondent suggests we might do, this court has reversed a conviction for the offense of disorderly conduct because the information was insufficient as a matter of law (People v. Schultz, 301 N. Y. 495; see, also, People v. Mulvey, 206 Misc. 771). We could not have reached that conclusion without holding that a sufficient information is necessary. “Forms and procedure still have their place and purpose in the administration of the law; without them we would have chaos ” (People v. Zambounis, supra).

In People ex rel. Davis v. Sheriff (3 Misc 2d 231, 233), also a case involving a conviction for disorderly conduct, the court, after noting the requirement of a written information in the case of a prosecution for a misdemeanor, aptly stated: ‘ ‘ While I am mindful of the fact that * * * we are here dealing with a so-called ‘ offense ’, nevertheless, where such offense is of the type which provides a maximum jail sentence of six months, I believe that all our traditional procedures and safeguards required in a prosecution for a misdemeanor, should be likewise complied with.” So, in the case at bar, defendant could have been sentenced to six months’ imprisonment (Penal Law, § 723). And in People v. Scott (3 N Y 2d 148, 153) we stated: “If in a ease involving a misdemeanor a mere unverified summons is to be the equivalent of an information, then any unverified paper could be treated likewise. This would be a dangerous practice, for there are countless misdemeanors for which a defendant may be punished by imprisonment for a year plus a fine of $500 (Penal Law, § 1937), not to speak of additional penalties, such as loss or suspension of a license to drive an automobile, to practice one’s profession or to engage in a licensed business.” (Emphasis supplied.) It is clear from defendant’s dismissal by the school authorities in this case that serious consequences may follow conviction for an offense as well as for a misdemeanor.

The order of the County Court should be reversed, and the judgment of conviction vacated.

Chief Judge Desmond and Judges Dye, Euld, Van Voomps, Burke and Foster concur.

Order of the County Court reversed and judgment of conviction of the City Court of the City of Beacon vacated.


author: Burke, J.

text:
    The People of the State of New York, Respondent, v. David McDowell, Appellant.
    Argued November 14, 1960;
    decided January 12, 1961.

      Abraham Ziegler for appellant.
    I. The trial court erred in excluding evidence of defendant’s general reputation for peacefulness in the community in which he resided. (People v. Van Gaasbeck, 189 N. Y. 408; People v. O’Regan, 221 App. Div. 331.) II. The trial court’s error in excluding defendant’s evidence showing general reputation for peacefulness constituted prejudicial error in that it deprived him of a vital, exculpatory defense. (Cancemi v. People, 16 N. Y. 501; Remsen v. People, 43 N. Y. 6; People v. Bonier, 179 N. Y. 315; People v. Colantone, 243 N. Y. 134.) III. The trial court erred in excluding evidence of the complaining witness’ hostility to defendant. (People v. Lustig, 206 N. Y. 162; People v. Michalow, 229 N. Y. 325.) IV. The trial court erred in excluding the hospital admission record of the complaining witness on the ground it was a privileged, confidential record. (Griffiths v. Metropolitan St. Ry. Co., 171 N. Y. 106; Klein v. Prudential Ins. Co., 221 N. Y. 449; Bloodgood v. Lynch, 293 N. Y. 308; People v. Preston, 13 Misc 2d 802.) V. The trial court’s exclusion of legally admissible, material evidence duly excepted to constitutes reversible, not harmless error. (Stokes v. People, 53 N. Y. 164; People v. Wood, 126 N. Y. 249; People v. Corey, 148 N. Y. 476; People v. Strait, 154 N. Y. 165; People v. Smith, 172 N. Y. 210.) VI. The District Attorney in summation interjected prejudicial ulterior matters calculated to sway the jury from its duty. (People v. Fielding, 158 N. Y. 542; People v. Mull, 167 N. Y. 247; People v. Tassiello, 300 N. Y. 425; People v. Hart, 114 App. Div. 9; People v. Gioia, 286 App. Div. 528; People v. Glennon, 37 Misc. 1.) VII. The conduct of the District Attorney in smuggling into the record a charge by the complaining witness that defendant had previously cut her was prejudicial error. (People v. Goldstein, 295 N. Y. 61; People v. Namer, 309 N. Y. 458; People v. Zackowitz, 254 N. Y. 192.)

      Arthur W. Wilson, District Attorney (John L. Butz of counsel), for respondent.
    I. The trial court properly ruled on questions relating to the reputation of appellant for peacefulness. (Michelson v. United States, 335 U. S. 469; People v. Nuzzo, 294 N. Y. 227; People v. Smith, 245 App. Div. 69; People
      v. Greenwall, 108 N. Y. 296.) II. The trial court did not erroneously exclude any evidence attempting to show the general reputation for peacefulness of defendant-appellant. III. The trial court properly ruled on the objections made and at no time excluded competent and material evidence offered by the defense. IV. The trial court properly excluded from evidence the hospital records pertaining to the complaining witness. (Hurd v. Republic Steel Corp., 275 App. Div. 725; Lorde v. Guardian Life Ins. Co. of America, 252 App. Div. 646; Vilardi v. Vilardi, 200 Misc. 1043; Palmer v. John Hancock Mut. Life Ins. Co., 150 Misc. 669; Polachek v. New York Life Ins. Co., 147 Misc. 16, 240 App. Div. 1028; Davis v. Supreme Lodge, Knights of Honor, 35 App. Div. 354, 165 N. Y. 159.) V. The trial court did not exclude legally admissible or material evidence. VI. The summation of prosecution was within the hounds of fair and reasonable comment on the evidence and free from prejudicial error. VII. The conduct of the District Attorney was not improper and the testimony of the complaining witness cited in error at this point raised no prejudice against defendant-appellant.
   Burke, J.

The judgment convicting defendant of assault in the second degree must be reversed because of the erroneous exclusion of evidence which is competent, relevant and material to the issues.

The excluded evidence dealt with defendant’s reputation for peacefulness in the community in which he resided, and the alleged hostility of the complaining witness.

[I]t is well settled that in a criminal prosecution, the defendant may introduce evidence as to his own good character for the purpose of raising an inference that he would not be likely to commit the offense charged. People v. Van Gaasbeck, 189 N. Y. 408 * * *; Cancemi v. People, 16 N. Y. 501.” (Richardson, Evidence [8th ed.], § 154; 7 Wigmore, Evidence [3d ed.], § 1981.) Although the attempts of defense counsel to introduce the evidence were lacking in legal preciseness, they nevertheless corresponded to methods generally approved (Michelson v. United States, 335 U. S. 469; People v. Van Gaasbeck, 189 N. Y. 408; 7 Wigmore, Evidence [3d ed.], § 1983) and deserved the approval of the trial court. Objections to the exclusion of character evidence cannot be taken lightly. ‘ ‘ This court has frequently stated that evidence of good character is a matter of substance; [sic] not of form, in criminal cases, and must be considered by the jury as bearing upon the issue of guilt, even when the evidence against the defendant may be very convincing.” (People v. Colantone, 243 N. Y. 134, 136; People v. O’Regan, 221 App. Div. 331.) Indeed the value of such testimony is pointed up by our rule as to the effect of evidence of good character. (People v. Trimarchi, 231 N. Y. 263; see, also, People v. Johnson, 5 N Y 2d 1000.) The prejudice here suffered by the defendant as a result of the exclusion of the character evidence entitles him to a new trial.

An additional error was committed by the trial court in refusing to allow testimony offered by defendant which tended to make apparent the hostility of the complaining witness. Defense counsel gave the correct reason for admission of such testimony when he stated: “ I want to attack the credibility of your witness ”. As there was only one other eyewitness to the crime, the defendant was seriously prejudiced when he was prevented from trying to show that the testimony of the complainant was actuated by feelings of hostility and revenge. It is conceivable that a jury might not have believed such testimony if the defendant had been permitted to testify as to prior conduct and statements. “ The rule is settled in this state, by repeated decisions of this court, that the hostility of a witness toward a party, against whom he is called, may be proved by any competent evidence. As it was stated in People v. Brooks (131 N. Y. 321, 325), the hostility ‘ may be shown by cross-examination of the witness, or witnesses may be called who can swear to facts showing it. There can be no reason for holding that the witness must first be examined as to his hostility, and that then, and not till then witnesses may be called to contradict him.’ ” (People v. Lustig, 206 N. Y. 162, 172.)

The discretion of the trial court consequently does not encompass a refusal to admit any such evidence, but rather permits it to limit the quantity thereof. (Garnseg v. Rhodes, 138 N. Y. 461.)

Other contentions of the defendant regarding statements made by complainant at the time of her admission to the hospital, and the alleged harmful conduct of the District Attorney, need not be considered here, in view of the necessity for a new trial.

The judgment of the Appellate Division should be reversed, and the case remanded for a new trial.

Chief Judge Desmond and Judges Dye, Ftjld, Fboessel, Van Voobhis and Fostee concur.

Judgment reversed and a new trial ordered.


text:
    Morlee Sales Corp., Respondent, v. Manufacturers Trust Company, Appellant. In the Matter of Manufacturers Trust Company, Appellant, v. Morlee Edsel Corporation, Respondent.
    Argued November 17, 1960;
    decided January 12, 1961.

      Whitney North Seymour, William J. Granger and Nancy L. Boxley for appellant.
    I. Notice of termination was given in the manner required by the plain language of the lease. Accordingly, the lease terminated 60 days thereafter. (Green v. Doniger, 300 N. Y. 238; Hartigan v. Casualty Co. of America, 227 N. Y. 175; Raner v. Goldberg, 244 N. Y. 438; Brown v. Bedell, 263 N. Y. 177.) II. The weight of authority holds that notice of cancellation may be given by the purchaser and subsequent to sale. (Matter of Furio v. Smith, 272 App. Div. 941; 112 East 36th St. Holding Corp. v. Daffos, 273 App. Div. 447, 298 N. Y. 763; Scheele v. Waldman, 136 App. Div. 679; Hadley v. Bernero, 97 Mo. App. 314; Cooper v. Gambill, 146 Ala. 184; Gambill v. Cooper, 159 Ala. 637; Nance v. Mullikin, 131 Kan. 828; Hawes v. Starliper, 126 Kan. 150; McVitty v. Flentge, 44 Cal. App. 426; Buhman v. Nickels & Brown Bros., 1 Cal. App. 266; Brewster-Greene v. Robinson, 34 Ariz. 547.) III. Matter of Furio v. Smith (272 App. Div. 941) should be limited to its facts. (Payne v. Brathwaite, 113 Misc. 517; Krim Realty Corp. v. Varveri, 97 Misc. 407; Gostin v. Needle, 185 Md. 634; Gorman v. General Outdoor Adv. Co., 320 Ill. 339; Gates v. Norton, 228 Ill. App. 96; 112 East 36th St. Holding Corp. v. Daffos, 273 App. Div. 447, 298 N. Y. 763.) IV. The bank did not assume the posture of landlord. It cancelled the lease as purchaser. V. The Furio doctrine, as construed and applied by the courts below, constitutes an erroneous and unjust rule of law which should be restricted to its facts by this court. (Woods v. Lancet, 303 N. Y. 349; Bing v. Thunig, 2 N Y 2d 656; Sears, Roebuck & Co. v. 9 Ave.-31 St. Corp., 274 N. Y. 388.)

      Edgar Hills and Neil M. Lieblich for respondent.
    I. The cancellation clause could only be exercised in the event that landlord has contracted to sell the premises to a purchaser desiring possession. Since the bank has already acquired title, it can only cancel when it sells the premises. (Taylor v. United States Cas. Co., 269 N. Y. 360; Rentways, Inc., v. O’Neill Milk & Cream Co., 308 N. Y. 342; 455 Seventh Ave. v. Hussey Realty Corp., 295 N. Y. 166; Dubois & Son v. Goldsmith Bros., 273 App. Div. 306; Krim Realty Corp. v. Varveri, 97 Misc. 407; Matter of 507 Madison Ave. Realty Co. v. Martin, 200 App. Div. 146, 233 N. Y. 683.) II. The court below was fully justified in affirming the doctrine of Matter of Furio v. Smith (272 App. Div. 941), since an identical lease provision was involved under a closely parallel factual pattern. III. The Appellate Division of the First Department in 112 East 36th St. Holding Corp. v. Daffos (273 App. Div. 447, 298 N. Y. 763) was in complete accord with the interpretation of the provisions. (Scheele v. Waldman, 136 App. Div. 679.) IV. Morlee had every right to rely upon the law as it existed at the time the lease was entered into. (Woods v. Lancet, 303 N. Y. 349; Bing v. Thunig, 2 N Y 2d 656; Sears, Roebuck & Co. v. 9 Ave.-31 St. Corp., 274 N. Y. 388; Compania de Inversiones Internacionales v. Industrial Mtge. Bank, 269 N. Y. 22; Weiler v. Dry Dock Sav. Inst., 258 App. Div. 581, 284 N. Y. 630; Wilson Sullivan Co. v. International Paper Makers Realty Corp., 307 N. Y. 20.)
   Burke, J.

The issue here is whether the Manufacturers Trust Company, as purchaser of the property, was authorized, under paragraph 18 of the lease, to give notice of cancellation in the absence of a resale of the property by it. Paragraph 18 provides: ‘ ‘ That if the Landlord should sell said premises, prior to the expiration of this lease and the purchaser thereof desires possession of said premises, then and in that event, the Tenant will cancel this lease and surrender possession of said premises, and will execute an instrument to effect a proper cancellation of this lease and surrender of the demised premises upon receiving 60 days written notice of the cancellation of this lease, by registered mail addressed to the Tenant to the premises herein demised, and the security deposited with the Landlord as aforementioned shall be returned to the Tenant.” (Italics supplied.)

On August 1,1957 respondent Morlee entered into a five-year lease with the Ave. D. Building Co., Inc., the then landlord of the leased premises now under consideration. In addition to the provision for notice of cancellation upon sale (par. 18, supra), this lease agreement provided (par. 33) that the tenant shall have the option to renew for a period of five years from its expiration (July 31, 1962) upon notification to the landlord by registered mail no later than April 1, 1962. On November 5, 1958, Ave. D. entered into a contract to sell the leased premises to appellant, Manufacturers Trust Company (hereinafter called the Bank), where it desired, and subsequently obtained permission, to establish a branch office thereon. On January 29, 1959, subsequent to obtaining title (January 8, 1959), the Bank, in formal compliance with the conditions of paragraph 18, notified Morlee that the lease would be cancelled on March 31,1959. On February 3,1959 Morlee notified the Bank that it was exercising its option pursuant to paragraph 33 to renew the lease for an additional period of five years. Thereafter, on March 25, 1959, Morlee instituted an action to declare that the attempted termination, pursuant to paragraph 18, was invalid because the Bank was not a landlord who was about to sell the premises; and that the extension pursuant to the option in the lease was, therefore, properly exercised. A summary dispossess proceeding instituted by the Bank in the Municipal Court on April 6, 1959 was subsequently consolidated with the former action instituted by Morlee in the Supreme Court.

The Supreme Court, concluding that this exact issue was decided by Matter of Furio v. Smith (272 App. Div. 941), found itself constrained to dismiss the dispossess proceeding and grant judgment in Morlee’s favor. The Appellate Division affirmed on the authority of 112 East 36th St. Holding Corp. v. Daffos (273 App. Div. 447, affd. 298 N. Y. 763) and Matter of Furio v. Smith (supra).

We do not think that the rationale of Daffos supports the decision below, and believe that the reasoning attributed to the cases cited in Furio should not be followed.

It is axiomatic that a contract is to be interpreted so as to give effect to the intention of the parties as expressed in the unequivocal language employed (Green v. Doniger, 300 N. Y. 238; Hartigan v. Casualty Co. of America, 227 N. Y. 175). The courts may not by construction add or excise terms, nor distort the meaning of those used and thereby “make a new contract for the parties under the guise of interpreting the writing.” (Heller v. Pope, 250 N. Y. 132, 135; Friedman v. Handelman, 300 N. Y. 188, 194.) In this respect we note that the language of clause 18 of the lease refers to a sale, rather than a contract to sell, and does not mandate that notice be given by any particular party. Although a similar provision has been liberally construed to allow the lessor (the only one designated in the lease) to give notice upon the execution of the contract to sell (and thereby permit him to convey free and clear of the lease; see Miller v. Levi, 44 N. Y. 489; Hyman v. Federal Doll Mfg. Co., 185 N. Y. S. 678), it is unreasonable to conclude it would in all cases prevent the giving of notice within a reasonable time after the sale. A restrictive interpretation in the latter instance would not be consistent with the liberal construction of the former clause.

Since the lease itself does not indicate who shall give notice, it seems only logical that the parties would intend that the purchaser be allowed to perform the required task (see Scheele v. Waldman, 136 App. Div. 679). It cannot be read to require the landlord to terminate the lease, and thereby part with a tenant before the landlord is assured that title will close. In any event we should not imply a restriction which the parties chose not to insert in the contract. (Raner v. Goldberg, 244 N. Y. 438, 442.)

Moreover, it is our opinion that the cases cited to substantiate the rationale of the Furio case (supra) are distinguishable either because they involve the construction of cancellation clauses which specifically identify the person to give notice, e.g., the landlord, lessor, etc., or because the purchaser waived his right to give notice by assuming the posture of the landlord (e.g., by waiting an unreasonable time, or accepting rent before giving notice). If there is an attornment, and the purchaser acknowledges the tenancy, certainly he would waive whatever rights he may have had to give notice. This type waiver was precise ground for our affirmance of the Appellate Division in the Daffos ease (supra). (See Basiliko Inv. Corp. v. United Gigar-Whelan Stores Corp., 168 F. 2d 567.)

In the case at bar, however, the Bank, in our opinion, gave timely notice and did nothing inconsistent with its election as purchaser. Three weeks after acquiring title, and prior to the collection of any rent from Morlee, the Bank duly notified Morlee. The acceptance of rent subsequent to the notice, but prior to the cancellation date, and also after the cancellation date during the pendency of the summary proceedings, was certainly not inconsistent with the assertion of the right to cancel. The argument that the ordinary title closing credit for rent constitutes an acceptance of rent by the Bank before notice to Morlee is untenable. This is merely an adjustment of the purchase price.

Accordingly, the judgment and order should be reversed, with costs in all courts, and the matter remitted to Special Term for further proceedings in accordance with the opinion herein.

Chief Judge Desmond and Judges Dye, Fuld, Fboessel, Van Voorhis and Foster concur.

Judgment accordingly.


author: Dye, J.

text:
    Ellen Valdimer, an Infant, by Her Guardian ad Litem, David Valdimer, et al., Respondents, v. Mount Vernon Hebrew Camps, Inc., Also Known as Camp Willoway, Appellant.
    Argued November 17, 1960;
    decided January 12, 1961.

      Whitney North Seymour, Richard Hawkins and Albert X. Rader, Jr., for appellant.
    I. An agreement made by a competent adult, in order to induce voluntary payment on account of an infant’s tort claim, to indemnify the payor against further liability to the infant is not prohibited by law or contrary to public policy. (Edsall v. Vandemark, 39 Barb. 589; Joyce v. Washington Stor. Warehouse & Van Co., 176 App. Div. 538.) II. There is no provision of law which imposes any obligation upon parents or persons dealing with them to make use of the statutes pursuant to which judicial approval of the compromise and settlement of infants’ claims may be obtained; and agreements by parents with respect to such claims, while ineffective to bar an infant’s right of action, are not contrary to law. (Merchants Mut. Cas. Co. v. Kiley, 92 N. H. 322.) III. An agreement by a parent to indemnify against claims which may be asserted by his child is not contrary to public policy. (Delafield v. Barret, 270 N. Y. 43; Gordon v. Agaronian, 10 Misc 2d 650; Agaronian v. Gordon, 6 A D 2d 806; Loesch v. Vassiliades, 17 N. J. Super. 306.)

      Stuart A. Sherman and Leonard L. Rivkin for respondents.
    I. A parent’s release and indemnification agreement executed in contravention to article 80 of the Civil Practice Act is null and void as being contrary to public policy. (Greenburg v. New York Cent. & H. R. R. R. Co., 210 N. Y. 505; Gordon v. Agaronian, 10 Misc 2d 650.) II. The parent’s indemnity agreement is contrary to public policy in that it deprives an infant of her legal safeguards and rights and redounds against the infant’s interests. (Loesch v. Vassiliades, 17 N. J. Super. 306; Delafield v. Barret, 270 N. Y. 43.)
   Dye, J.

The question posed on this appeal taken as of right is whether an indemnity agreement, contained in a general release given by the parent in settlement of an infant’s claim, is unenforcible as a matter of public policy.

The infant plaintiff, Ellen Valdimer, sustained injuries on August 16, 1955, while enrolled at the Summer camp operated by the defendant, allegedly due to the latter’s negligence. Subsequently, but before any suit had been brought, the adult plaintiff, as parent, negotiated a settlement of the infant’s claim, as well as his own, for incidental relief in the sum of $400. In consideration of the payment of that sum, the parent executed a document entitled ‘1 Parents-Gu ardían Release and Indemnity Agreement ” which contained a general release of his and the infant’s claims and an affirmative agreement to indemnify and hold the defendant harmless against all loss, damage and expense by reason of any suit subsequently brought by or od behalf of the infant at any time or by reason of any judgment that might be obtained on account of the occurrence. This was done November 17, 1955. Later, in November, 1958, the parent, as guardian ad litem and individually, commenced this action to recover damages for the injuries suffered by the infant and for his own incidental loss. The defendant joined issue by filing its answer, in which it denied generally all allegations of negligence and damage, set up the Statute of Limitations against the parent, pleaded as a complete defense that the claim of the parent, if any, had been settled in full for the payment of $400 and pleaded the payment as a partial defense against the infant. The answer also set up against the adult plaintiff a counterclaim based on his agreement to indemnify. Plaintiffs then made the within motion to strike from the answer the partial defense and the counterclaim. Special Term granted the motion. The Appellate Division restored the partial defense and, having so modified, affirmed the order appealed from.

The courts below have taken the view that the indemnity agreement is void, since enforcement would contravene the public policy enunciated in article 80 of the Civil Practice Act, which renders unenforcible any agreement purporting to settle an infant’s claim for personal injuries unless approved by the court or a judge thereof. The dissenting Justice in the Appellate Division had no difficulty with the unenforcibility of the agreement as to the infant since she was under a legal incapacity unavailable to the parent, but expressed the view that to excuse the parent, who had taken a consideration for his agreement to indemnify, and in the absence of fraud or mistake, was to run counter to our holding in Delafield v. Barret (270 N. Y. 43).

Patently, article 80 of the Civil Practice Act (added by L. 1947, ch. 366), enacted pursuant to recommendation by the Judicial Council (Thirteenth Annual Report of N. Y. Judicial Council, 1947, p. 193), was designed to safeguard the rights and interests of infants by empowering the courts to scrutinize the facts regarding the propriety and reasonableness of the proposed settlement of an infant’s claim. The procedure thus authorized permits a negotiated compromise of an infant’s claim without the preliminary necessity for the commencement of an action or the appointment of a guardian ad litem, as had been the practice theretofore. It is true the statute is permissive in nature and makes no change in the substantive law, but, as a majority of the court below pointed out, it is equally true that no settlement obtained without court approval, whether before or after the commencement of an action, is enfofeible. The courts are bound to protect infants, who are their wards (Greenburg v. New York Cent. & H. R. R. R. Co., 210 N. Y. 505), and the lower courts have remained faithful to their trust by adhering consistently to this salutary rule (Joyce v. Washington Stor. Warehouse & Van Co., 176 App. Div. 538; Gordon v. Agaronian, 10 Misc 2d 650; approved: Thirteenth Annual Report of N. Y. Judicial Council, 1947, pp. 203-204).

Turning to the question posed on this appeal, we must decide whether a contract, validly executed by responsible parties, is nonetheless unenforeible by reason of a possible conflict with the infant’s interests.

The courts of two of our sister States, when faced with the identical question, answered in the affirmative and declared such indemnity agreements against the public policy of their respective jurisdictions (Loesch v. Vassiliades, 17 N. J. Super. 306 [1952]; Ohio Cas. Ins. Corp. v. Mallison, 354 P. 2d 800 [Oregon, 1960]). We reach the same conclusion.

Since article 80 of the Civil Practice Act and rule 294 of the Rules of Civil Practice plainly were adopted to prevent injustices with respect to infants’ claims, it follows that to allow a tort-feasor to extract a promise of indemnification from the parent of the injured child is effectively to frustrate the purpose of requiring judicial approval to give binding effect to settlement agreements. Clearly, a parent who has placed himself in the position of indemnitor will be a dubious champion of his infant child’s rights.

We note that, by subdivision 2 of rule 40 of the Rules of Civil Practice, the guardian ad litem and the special guardian 1 ‘ shall have no interest adverse to that of the infant or incompetent nor be connected in business with the attorney or counsel of any adverse party, nor shall he be nominated by any person having an adverse interest” (Bose v. Wehrli, 186 Misc. 325 [Sup. Ct., Nassau County, 1945]). The rule is based on an apprehension of prejudice to the infant, made possible by conflicting interests — and this, despite the presence and supervision of the courts, and the judicial approval required of all acts affecting the infant’s rights.

A fortiori, we are extremely wary of a transaction that puts parent and child at cross-purposes and, in the main, normally tends to quiet the legitimate complaint of the minor child. G-enerally, we may regard the parent’s contract of indemnity, however well-intended, as an instrument that motivates him to discourage the proper prosecution of the infant’s claim, if that contract be legal. The end result is either the outright thwarting of our protective policy or, should the infant ultimately elect to ignore the settlement and to press his claim, disharmony within the family unit. Whatever the outcome, the policy of the State suffers.

Appellant has reminded us that the procedures authorized by article 80 and rule 294 are permissive, not mandatory, and in this, of course, it is correct. If a tort-feasor wishes to advance money to an infant claimant on the faith of a contract that cannot serve to bind the latter, it is at liberty to do so. Indeed, nothing in our policy requires a different construction of the statutory procedures, since it is the welfare of the infant, not of the tort-feasor, which we seek to safeguard.

But appellant considers the permissive nature of the statutory procedures a factor compelling the result reached in Delafield v. Barret (supra). In the Delafield case a general guardian, upon the advice of her attorney, agreed to indemnify a firm of investment brokers against any losses that might be sustained as a result of investing her children’s funds “in securities other than those which a guardian is permitted to invest in under the laws of this State ”, namely, those specified in section 111 of the Decedent Estate Law. The issue there, as here, was whether the indemnity agreement was unenforcible. We held, in that case, that the agreement could be enforced, stating that the investment of funds in securities not expressly authorized by statute does not in and of itself constitute tortious conduct. The effect of such investments is to deprive the fiduciary of the defense of good judgment or good faith, in an action brought to recover the amount of the loss suffered. Where the guardian herself induced the unauthorized investments, in the belief that her wards would thereby be benefited, even though she was aware of her potential liability direct to the children, it was not improper to hold her to her contract with the brokerage firm.

The differences between Delafield {supra) and the case at bar command a contrary result.

The first point of departure is the nature of the wrong done to the infant. Here, without- question, the complaint states a cause of action in tort. In Delafield {supra), this court expressly characterized the basis of liability to the infant as nontortious. The investment of funds in unauthorized securities was, by legislative pronouncement, unwise, and was discouraged by the imposition of liability for resultant losses. Secondly, the Delafield indemnity agreement sought to protect the brokerage firm from potential loss caused by its purposeful exercise of judgment, legislatively deemed in advance to be unwise. The infants were empowered to sue either the firm or the guardian, or both. If gains had been achieved through the unauthorized investments, the infants naturally would have been benefited. In that respect the inducement provided by the guardian, set in the form of the indemnity contract, was not patently to the children’s disadvantage. If, on the other hand, the investments had proved to be ill-advised, as was the fact in Delafield, the contract of indemnity would merely have had the effect of thrusting the burden of liability entirely on the guardian, against whom the children could have proceeded directly from the beginning. In the case now before us the circumstances are in no wise similar. Here, the indemnity agreement was entered into after the creation of presumptive liability; and the contracting parent was free from the wrongdoing on which the infant’s claim was grounded. The sole purpose of the agreement was to induce settlement of the claim without the safeguard of judicial approval, and its practical effect was to bind the child to the settlement so reached. If we give recognition to the indemnity provision, the child will be penalized for her father’s indiscretion: the very situation our public policy seeks to avert.

Superficially, the Delafield holding may appear to control here. Indeed, the Supreme Court of Oregon was unable to distinguish that ease in arriving at its own result in the Mallison case (cited supra). But the two cases are perfectly consistent with each other. In the one case the indemnitor strove to benefit her wards by means over which there was honest disagreement between herself and the Legislature; she was made to bear the responsibility for her unauthorized handling. In the other ease the indemnitor and indemnitee have attempted to circumvent a procedure designed for the safety of the child, a procedure established on the theory that no one but a court can bind an infant to a contract settling a claim for the negligent infliction of personal injuries.

Accordingly, the judgment appealed from should be affirmed, with costs.

Chief Judge Desmond and Judges Fuld, Froessel, Van Voorhis, Burke and Foster concur.

Judgment affirmed.


author: Chief Judge Desmond.

text:
    In the Matter of Ralph Von Kohorn, Respondent, v. Herbert K. Morrell et al., Constituting the Board of Appeals of the City of White Plains, et al., Appellants. In the Matter of Jacquin A. Bindamin et al., Respondents, v. Herbert K. Morrell et al., Constituting the Board of Appeals of the City of White Plains, et al., Appellants.
    Argued November 16, 1960;
    decided January 12, 1961.

      William McKinley, Corporation Counsel (Santi L, Carnevali of counsel), for Board of Appeals of the City of White Plains and the City of White Plains, appellants.
    I. The Zoning Board of Appeals had jurisdiction to act on the application. (Matter of Five Towns YM & YWHA v. Plaut, 14 Misc 2d 61, 7 A D 2d 646; People v. Kaye, 212 N. Y. 407; People v. Reilly, 255 App. Div. 109, 280 N. Y. 509; Matter of Blatnicky v. Ciancimino, 1 A D 2d 383, 2 N Y 2d 943.) II. Under the zoning ordinance a membership club, not operated for profit, is authorized to have residential or dormitory facilities. III. The Zoning Board of Appeals found that the standards set forth in the zoning ordinance were duly met and the evidence to support such findings is in the record. IV. The granting of the application was not arbitrary or an abuse of discretion. (Matter of Kilgus v. Board of Estimate of City of N. Y., 308 N. Y. 620; Matter of Taub v. Pirnie, 3 N Y 2d 188; Matter of Magde v. Crowley, 200 Misc. 109; Matter of Hickox v. Griffin, 274 App. Div. 792, 298 N. Y. 365; People ex rel. Werner v. Walsh, 212 App. Div. 635, 240 N. Y. 689; Matter of Diocese of Rochester v. Planning Bd. of Town of Brighton, 1 N Y 2d 508; Matter of Russo v. Stevens, 7 A D 2d 575.)

      Thomas F. Croake and William F. Ranscht for Young Women’s Christian Association of White Plains and Central Westchester, appellant.
    I. The Zoning Board of Appeals was authorized and empowered to grant the subject special permit under the terms' and provisions of the local zoning ordinance if and in the event that it found that the five ’requirements mentioned in the zoning ordinance were fulfilled. (Matter of Five Towns YM & YWHA v. Plaut, 14 Misc 2d 61, 7 A D 2d 646; People v. Kaye, 212 N. Y. 407; People v. Reilly, 255 App. Div. 109, 280 N. Y. 509; Matter of Blatnicky v. Ciancimino, 1 A D 2d 383, 2 N Y 2d 943; Palmer v. Van Santvoord, 153 N. Y. 612; Yale Univ. v. Town of New Haven, 71 Conn. 316; Phillips Academy v. Andover, 175 Mass. 118; Harvard Coll. v. Cambridge, 175 Mass. 145.) II. The findings made by the Board of Appeals are fully supported by the evidence in the record herein. (Matter of Hecht v. Monaghan, 307 N. Y. 461.) III. The discretion exercised by the Zoning Board of Appeals in granting the subject special permit should not have been disturbed. (Matter of Otto v. Steinhilber, 282 N. Y. 71; Matter of Anthony v. Liberman, 13 Misc 2d 335, 7 A D 2d 914; Matter of Levy v. Board of Standards & Appeals, 267 N. Y. 347; Matter of Taub v. Pirnie, 3 N Y 2d 188; People ex rel. Hudson-Harlem Co. v. Walker, 282 N. Y. 400; Matter of Hickox v. Griffin, 274 App. Div. 792; Matter of Burlinson v. Zoning Bd. of Appeals of City of Yonkers, 275 App. Div. 723; Matter of Reed v. Board of Standards & Appeals of City of N. Y., 255 N. Y. 126; People ex rel. Sullivan v. McLaughlin, 266 N. Y. 519.) IV. The findings made by the Board of Appeals are sufficient in form and content. (Matter of Kilgus v. Board of Estimate of City of N. Y., 308 N. Y. 620; Matter of Elite Dairy Prods. v. Ten Eyck, 271 N. Y. 488; Matter of New York State Guernsey Breeders Co-op. v. Noyes, 284 N. Y. 197; Matter of Bullis v. Du Mond, 276 App. Div. 882; Matter of Lemir Realty Corp. v. Larkin, 8 A D 2d 970; Matter of Community Synagogue v. Bates, 1 N Y 2d 445; Matter of Holmes & Murphy v. Bush, 6 A D 2d 200; People ex rel. Fordham Manor Reformed Church v. Walsh, 244 N. Y. 280.)

      Ira M. Millstein and Marshall C. Berger for respondent in the first above-entitled proceeding.
    I. The Board of Appeals did not make evidentiary findings in support of its decision. (Matter of Syosset Holding Corp. v. Schlimm, 4 A D 2d 766; Matter of Panzer v. McConnell, 6 A D 2d 700; Matter of Family Consultation Serv. v. Howard, 14 Misc 2d 194; Matter of Lusby v. Shoemaker, 14 Misc 2d 421; Matter of Lemir Realty Corp. v. Larkin, 8 A D 2d 970.) II. There is no support in the record for the findings made and required to be made by the Board of Appeals as a condition precedent to the granting of the application and the determination consequently was arbitrary and capricious. (Matter of Community Synagogue v. Bates, 1 N Y 2d 445; Matter of Holmes & Murphy v. Bush, 6 A D 2d 200; People ex rel. Fordham Manor Reformed Church v. Walsh, 244 N. Y. 280.) III. The application of the Y. W. C. A. does not come within the schedule of special uses permitted in the R-O zone.

      Joseph W. Genzardi for Jacquin A. Bindamin and others, respondents in the second above-entitled proceeding.
    I. Appellant Young Women’s Christian Association of White Plains and Central Westchester is not a nonprofit membership club within the meaning of the schedule limiting the use of buildings as the same affects ‘ ‘ R-O ’ ’ districts under the Zoning Ordinance of the City of White Plains. (Matter of Charles, 200 Misc. 452, 279 App. Div. 741, 304 N. Y. 776; Matter of Five Towns YM & YWHA v. Plaut, 14 Misc 2d 61, 7 A D 2d 646; Traylor v. Crucible Steel Co. of America, 192 App. Div. 445; Matter of Conolly, 266 App. Div. 333; Matter of Wurlitzer Co. v. Byrne, 175 Misc. 81; Stewart v. Barber, 182 Misc. 91; People v. Kaye, 212 N. Y. 407; People v. 131 Boerum St. Co., 233 N. Y. 268.) II. Appellant Board of Appeals was without the power, under the Zoning Ordinance of the City of White Plains, in force and effect, to grant a special use permit for the erection and maintenance of an activities building containing a dormitory with 66 rooms and in maintenance of a day camp not requested in the application filed but a conceded use under so-called outdoor activities in an “ R-O ” residence one-family district. (Matter of Levy v. Board of Standards & Appeals, 267 N. Y. 347; Matter of Reed v. Board of Standards & Appeals of City of N. Y., 255 N. Y. 126; Matter of Syosset Holding Corp. v. Schlimm, 15 Misc 2d 10; Matter of Schroeder v. Kreuter, 206 Misc. 198, 284 App. Div. 972, 308 N. Y. 993; Matter of Anthony v. Liberman, 13 Misc 2d 335, 7 AD 2d 914.)
   Chief Judge Desmond.

The Appellate Division as its reasons for reversal first stated that the proposed Y. W. C. A. building would not be a nonprofit 1 ‘ membership club ’ ’ use within the meaning of the Write Plains Zoning Ordinance, then said without specification that ‘ there is no support in the record for a number of findings made, and required to be made, by the board ”. We think that neither of those positions was well taken and that the board’s action was valid.

As to the Appellate Division’s first ground, the zoning law says that the board may as special uses in BO districts permit “ Golf clubs, country clubs and other membership clubs not operated for profit ”, surely a broad inclusive category. The permit as granted authorized the construction by the local Y. W. C. A. of an “ activities building, including residence dormitory facilities ’ ’ for 60 persons ‘1 to be used by club members only, together with indoor and outdoor recreational facilities ”, the dormitory facilities to be “ restricted for use only by members and employees of the applicant”. On this record it was not permissible for the Appellate Division to hold as matter of law that the permit was not for such a ‘' membership club ’ ’ use as is allowed by the ordinance. The building was to be of the conventional, well-known Y. W. C. A. type with sleeping rooms like other kinds of clubs. The objectants, as was their right, expressed their opposition to such a use in their neighborhood but they did not really claim that it would not be a clubhouse or that the Y. W. 0. A. is not a nonprofit membership corporation. Some of the statements at the hearing show a mistaken belief that the board could and should order that the Y. W. 0. A. build in some other neighborhood. Some objectors thought it was to be a sort of hotel. The board heard the objections, checked out the true facts and exercised its statutory discretion in granting the permit, after imposing carefully drawn restrictions.

Now, let us consider the evidence produced before the board. Recognizing settled practice and the practicalities, we have said that zoning hearings may be quite informal and that the positions of the contending' parties need not be put into the form of sworn testimony (People ex rel. Fordham Manor Ref. Church v. Walsh, 244 N. Y. 280, 285, 287). At this hearing there were lawyers representing each side but no one offered formal testimony or objected to the unsworn statements put in by all parties alike. As to the sufficiency of the proof (as distinguished from its form), we will assume that under the ordinance there had to be a showing: first, of appropriate location as to transportation, water, sewerage, fire and police; second, of reasonable safeguards of neighborhood character and property values; and, third, of absence of undue traffic congestion or traffic hazard. On this record these were all questions of fact for the board to decide.

As to alleged destruction of neighborhood character and property values, we first take a general look at the locality. The proposed site is not on a quiet country lane or in a secluded urban residential area. The premises are on North Street in White Plains, near Bryant Avenue. Directly across North Street on a 70-acre site, the city is putting up a group of high school buildings complete with athletic fields, etc. At the nearby corner of North Street and Bryant Avenue a church is under construction and two other new churches are being, or about to be, built. Directly adjoining this Y. W. C. A. site is a large country club. The nearest street intersection is at Bryant Avenue, a four-lane highway. Farther north on North Street there is a sizable office building and two hospitals. This is a changing neighborhood, its pristine seclusion already ended by churches, a very large school, a country club, business offices and hospitals and a nearby intersecting main highway. The board went to great length to protect what qniet there remained by sharply reducing the number of sleeping rooms in the proposed building, by relocating those rooms and by changing the location of the auditorium and parking lot, putting them in the rear away from the nearby residences and adjoining the country club. The proposed Y. W. O. A. building is to be set back from North Street approximately 300 feet.

There was no direct proof from either side as to water supply or fire and police and sewerage protection. Considering the existing nearby uses, it could almost be assumed that these were present. The record shows that the matter had been discussed before the hearing with the Commissioners of Public Safety and Public Works and that neither had raised any objections or difficulties. The practice of the board requires notice to these Commissioners. Since there never was any issue as to water, fire, police and sewerage and since it appeared that the practice was followed of notifying the city officials so that they might object if they wished and that no such objection was made, it is not appropriate now to assert any supposed failure of proof in these respects. There never was any such issue at the hearing, so how could it be a ground for annulling the permit?

• The other board findings, required to be made and actually made, were that the permitted new building would be appropriately located as to transportation and would cause no undue traffic congestion or traffic hazard. We would suppose that these board members, with the facts either known to them (People ex rel. Fordham Manor Ref. Church v. Walsh, 244 N. Y. 280, 287, supra) or presented at the hearing, could make common-sense judgments as to all these matters. Argument is made that there is a lack of transportation facilities. Appellants showed that a bus line passed the property whereupon respondents pointed out that the line ran only one; bus an hour. We think the ordinance means that an application may be denied if the proposed use is inappropriately located as to transportation services, but such a finding could not be made by the court as matter of law as to this site. Presumably the bus service will be increased if and when the demand justifies it and, meanwhile, no one knows how many of the young lady occupants of this club will drive their own cars. As to traffic conditions, the board on existing facts and probabilities could properly find that this use would not “ cause undue traffic congestion or create a traffic hazard ” beyond those already existing. Every one of these controversies raised at most an issue of fact and judgment for the board. Conceivably, we could send the matter back to the board to amplify the findings to include the precise facts for which the members relied on their own sources of information (Matter of Community Synagogue v. Bates, 1 N Y 2d 445, 454) but it would be a useless formality since the facts were commonly known to everyone concerned.

This is the familar zoning case arising out of swiftly changing use patterns in a burgeoning Westchester County city. As someone remarked at the hearing, everyone wants churches, schools (and clubs) but not in his own neighborhood. Zoning boards of appeals are made up not of theoreticians or doctrinaire specialists but of representative citizens doing their best to make accommodations between conflicting community pressures (People ex rel. Fordham Manor Ref. Church v. Walsh, 244 N. Y. 280, supra). They had in mind the wishes of the neighbors as well as the community value of the Y. W. C. A. This record shows the care with which the problem was debated and disposed of by this board. For the court to overrule the board’s judgment was illegal and contrary to the settled and practical necessities of zoning procedure.

The order should be reversed, with costs.

Judges Dye, Froessel, Burke and Foster concur with Chief Judge Desmond ; Judges Fuld and Van Voorhis dissent and vote to affirm the unanimous order of the Appellate Division for the reasons stated in that court’s memorandum.

Order of the Appellate Division reversed and that of Special Term reinstated, with costs.