author: Froessel, J.

text:
    In the Matter of Richard Hymes et al., Appellants, against Joseph Schechter et al., Constituting the City Civil Service Commission for the City of New York, et al., Respondents.
    Argued May 21, 1959;
    decided July 8, 1959.

      Murray A. Gordon for appellants.
    I. The 1 ‘ conversion formula ” violates the requirement of promotions according to merit by competitive examination in that the “ conversion formula” was inconsistent, and in conflict with the passing grade and weight fixed for Part I and each question thereon by the notice of examination and the instructions. (Matter of Dowling v. Brennan, 284 App. Div. 563; Matter of Fink v. Finegan, 270 N. Y. 356; Matter of Blumenthal v. Morton, 273 App. Div. 497, 298 N. Y. 563; Matter of Shaughnessy v. Falk, 208 Misc. 788; Matter of Wittekind v. Kern, 170 Misc. 939, 256 App Div. 918, 281 N. Y. 701; Matter of Abramowitz v. Municipal Civil Serv. Comm., 284 App. Div. 568; Matter of Poss v. Kern, 263 App. Div. 320; Matter of Borodkin v. Kern, 174 Misc. 339, 260 App. Div. 914, 285 N. Y. 732; Matter of Gilburt v. Kroll,
      17 Misc 2d 409, 1 A D 2d 819, 2 N Y 2d 896; Matter of Jacoby v. McNamara, 275 App. Div. 695.) II. City Civil Service Commission Rule V (§ V, subd. 4) does not serve to justify the post-examination deviation from prior notice occasioned by the ‘ ‘ conversion formula ’ ’. III. The ‘‘ conversion formula ’ ’ as here applied violates section XI of the General Examination Regulations of the City Civil Service Commission of New York. IV. The “ conversion formula ” as here applied cannot be reasonably sustained or justified in terms of 1 ‘ the needs of the service”. V. Respondents’ use of the “ conversion formula ” was unauthorized. (Accardi v. Shaughnessy, 347 U. S. 260; Peters v. Hobby, 349 U. S. 331; Service v. Dulles, 354 U. S. 363.)

      Charles H. Tenney, Corporation Counsel (John A. Murray and Seymour B. Quel of counsel), for respondents.
    In the absence of bad faith or palpable illegality, the judgments and decisions of the Civil Service Commission relating to the conduct of examinations will not be disturbed. The conversion formula adopted by the commission and employed in the grading of this examination was authorized by its rules, is in accord with sound testing techniques, and was the result of the exercise of an administrative discretion which was fair and reasonable. (Matter of Firshein v. Reavy, 263 App. Div. 490, 289 N. Y. 712; People ex rel. Caridi v. Creelman, 150 App. Div. 746; Matter of Gruner v. McNamara, 298 N. Y. 395; Matter of Sloat v. Board of Examiners, 274 N. Y. 367; Matter of Blumenthal v. Morton, 273 App. Div. 497, 298 N. Y. 563; People ex rel. Moriarty v. Creelman, 206 N. Y. 570; Matter of Pollak v. Conway, 276 App. Div. 435; Matter of Cavanagh v. Watson, 201 Misc. 899, 280 App. Div. 757, 280 App. Div. 862 ; Matter of Abramson v. Commissioner of Educ., 1 A D 2d 366; Matter of Brady v. Finegan, 246 App. Div. 526, 269 N. Y. 571; Matter of Dowling v. Brennan, 284 App. Div. 563; Matter of Poss v. Kern, 263 App. Div. 320; Matter of Gilburt v. Kroll, 17 Misc 2d 409, 1 A D 2d 819, 2 N Y 2d 896.)
   Froessel, J.

In this article 78 proceeding, petitioners seek to annul the determination of the City Civil Service Commission for the City of New York, which graded Part I of a promotion examination for the position of Assistant Housing Manager in the New York City Housing Authority in accordance with a “conversion formula” which deducted 1.5% for each incorrect answer, and other related relief.

The examination in question was held on April 7, 1956. The notice of examination stated that the written test would be assigned a weight of 40, the oral test a weight of 10, and record and seniority a weight of 50, and that “ Candidates who fail to attain the pass mark which shall be set for any test, subject or part of the examination shall be deemed to have failed the examination and no further test, subject or part of the examination shall be rated” (emphasis supplied).

The written test was divided into two parts, 60 multiple-choice questions, all of equal weight, in Part I, and 4 essay questions, all of equal weight, in Part II. The instructions in the examination booklet apprized the candidates that they were required to achieve a grade of 70% in each of the two parts in order to pass the entire written examination. Subsequent to the written test, the official key answers to Part I were published and 2 questions were deleted. The deletions are not challenged in this proceeding. This had the effect of increasing the percentile value of each question from 1.667% to 1.724%, and 41 correct answers were required to attain a passing mark of 70% or better.

After grading Part I, but before the candidates were identified and their respective grades ascertained, the commission, on August 2, 1956, took a “ raw score ” sampling of the Part I papers and discovered that only 69 candidates, including petitioners, answered 41 or more questions correctly and thus received a passing grade. In addition to those 69,13 candidates had received a raw score of 69% to 69.9% and, to avoid penalizing candidates because 2 questions had been deleted (that is, candidates who might have had 42 out of 60 right and passed, might, after the deletion, have had 40 right and failed), it was decided to grade Part I on the basis of 60 questions and deduct 1.667 % for each wrong answer. Thus 82 candidates passed on the basis of the raw score grading, and petitioners do not challenge the propriety of the rating adjustment to account for the deletion of 2 questions.

The commission determined that Part I had been too difficult and that unless a comparative method of grading was

employed there would ‘ ‘ not be a sufficient number of candidates to meet the needs of the service for the anticipated 4 years statutory life of the list based on the experience of making appointments from prior lists for the position of Assistant Housing Manager.” Consequently, it decided to apply a conversion formula ” in rating Part I, in accordance with rule Y (§ Y, subd. 1) of its rules, which provides: 1. Except as otherwise specified by the Director of Examinations, each test, subject or part of an examination, shall be rated by not less than two examiners. They shall then affix to each paper or record a rating expressing the average of their judgment attested by their respective signatures or initials. The rating shall be comparative and in accordance with such standards as the needs of the service mag require. Where there is an insufficient number of candidates in open competitive or promotion examinations to provide an adequate eligible list to meet the needs of the service, the Director of Examinations mag, with the approval of the Personnel Director, provide a mathematical formula of penalties for incorrect answers on the basis of test difficulty and other relevant factors in the rating of written tests of the objective type. (Amended 4/24/56).” (Emphasis supplied.)

Although this rule did not become effective as to promotion examinations until more than two weeks after the examination was held (it was previously applicable to open competitive examinations), the commission employed it in rating Part I and deducted only 1.5% for each incorrect answer. By use of this mathematical formula, a candidate with a raw score of 65% achieved a converted final score of 70%, the passing grade initially announced. The passing grade for Part I was thus reduced, in effect, to 65%.

As a result of the employment of the conversion formula, 129 candidates, rather than 82, successfully passed Part I. Of this number 88, including the petitioners, passed the entire examination. Had the conversion formula not been employed, a lesser number of candidates would have passed the entire examination. In consequence, petitioners say they were placed lower on the eligible list, which meant a substantial delay in promotion.

As already noted, the rule authorizing the commission to apply a conversion formula to promotion examinations was not officially promulgated until more than two weeks after the written examination was held. Although adopted by the commission on March 20, 1956, the rule was not approved by the Mayor and the State Civil Service Commission, as required by subdivision 2 of section 11 of the Civil Service Law, until April 24th, and thus had no legal effect prior to the latter date (Matter of Corrigan v. Joseph, 304 N. Y. 172, 185, cert, denied 345 U. S. 924; Matter of Foy v. Schechter, 1 N Y 2d 604, 610-612). The issue before us is whether the commission could validly apply a mathematical formula of penalties to the grading of an examination held prior to the effective date of the rule authorizing the use of such a formula.

The answer is clear. A civil service body may, in accordance with the most modern and scientific methods of rating, adjust the passing mark of an examination provided adequate and informative advance announcement is made. Such body may not, however, lawfully adjust the required passing grade for part of a written examination, unless it notifies the candidates in advance of the examination by duly promulgated rule or otherwise, that such an adjustment may be made, and discloses the method and factors to be used in determining such an adjustment (Matter of Gilburt v. Kroll, 17 Misc 2d 409, affd. 1 A D 2d 819, affd. 2 N Y 2d 896; Matter of Dowling v. Brennan, 284 App. Div. 563; Matter of Robbins v. Schechter, 7 Misc 2d 436, affd. 3 A D 2d 1010, affd. 4 N Y 2d 935).

In the last-cited case, an amendment to rule V (§ V, subd. 1) of the commission’s rules, which authorized it to employ a conversion formula in computing the final grade on promotional examinations, had been promulgated prior to administering the examination. Thus the recital in the examination booklets that 70% was the required passing grade for Part I was subject to the effective rules, already promulgated, bearing on the subject, and the candidates were chargeable with notice that the announced passing grade might be adjusted in accordance with a mathematical formula if it appeared that there was going to be an insufficient number of candidates on the resulting eligible list.

Here, the examination was given prior to the promulgation of said amendment to rule V, and the candidates had no notice, actual or constructive, that Part I might be rated by use of a conversion formula if test difficulty and other relevant factors would result in an inadequate eligible list. Rule V (§ V, subd. 4) of the commission’s rules, relied upon by the majority of the Appellate Division and which provides that “ The required passing rating in any test, subject or part of an examination shall be fixed by the Director of Examinations prior to the disclosure of the identities of the candidates therein ”, does not fulfill the advance notice requirement. The commission here had already fixed the required passing mark, and the candidates had no notice that it might be changed.

The order appealed from, as well as the order of Special Term, should be reversed, with costs, and the matter remitted to Special Term for further proceedings not inconsistent with this opinion.

Chief Judge Conway and Judges Desmond, Dye, Fuld, Van Voorhis and Burke concur.

Orders reversed, etc.


source: Caselaw Access Project

author: Van Voobhis, J.

license: Public Domain

text:
    In the Matter of the Arbitration between Otis Elevator Company, Respondent, and James Carney, as President of Local 453, International Union of Electrical, Radio and Machine Workers, AFL-CIO, et al., Appellants.
    Argued May 25, 1959;
    decided July 8, 1959.

      Melvin Warshaw for appellants.
    I. This dispute herein is bona fide and falls within the scope of the broad and comprehensive arbitration provision contained in the collective agreement. (Matter of Lipman [Haeuser Shellac Co.], 289 N. Y. 76; Matter of Teschner v. Livingston, 285 App. Div. 435, 309 N. Y. 972; Matter of Potoker [Brooklyn Eagle], 2 N Y 2d 553; Matter of North Amer. Philips Co. [International Assn. of Machinists], 200 Misc. 428; Matter of Acme Backing Corp. [District 65], 2 A D 2d 61, 2 N Y 2d 963; United Steelworkers of America v. Warrior & Gulf Nav. Co., 168 F. Supp. 702; Timken Roller Bearing Co. v. National Labor Relations Bd., 161 F. 2d 949; Lodge No. 12 v. Cameron Iron Works, 257 F. 2d 467.) II. The question of subcontracting arising under contracts with a less extensive arbitration provision than the one at bar has been a regular subject of arbitration and has been universally considered a bona fide dispute — the absence of specific language dealing with subcontracting notwithstanding. (Wood v. Duff-Gordon, 222 N. Y. 88.)

      Bern Budd for respondent.
    The contract contains no provision for the arbitration of the grievance presented, and it is apparent from the terms of the contract that there has been no default by the employer. (Matter of General Elec. Co. [United Elec. Radio & Mach. Workers of America, C. I. O.], 300 N. Y. 262; United Steelworkers of America v. Warrior & Gulf Nav. Co., 168 F. Supp. 702; Amalgamated Assn. of St. Elec. Ry. Employees v. Greyhound Corp., 231 F. 2d 585; Matter of Curry, Inc. [Red-deck], 194 Misc. 527; Matter of Berger [World Broadcasting System], 191 Misc. 1043, 274 App. Div. 788; Matter of Twentieth Century-Fox Film Corp. [Screen Publicists’ Guild, 17 Misc 2d 233; Matter of Towns & James [Federal Labor Union], 183 Misc. 181; Standard Refinery Union v. Esso Standard Oil, 31 N. J. Super. 548; Matter of Carborundum Co. [Swisher], 17 Misc 2d 231; Local Union No. 600, United Auto Workers v. Ford Motor Co., 113 F. Supp. 834.)
   Van Voobhis, J.

The appellant union and its president appeal from an order of the Appellate Division, Second Department, reversing an order of Special Term, Westchester County, which denied respondent’s motion to stay arbitration, and granting said motion. The agreement between the employer and the union contains a broad arbitration clause (art. VI, § 1) stating that “ All differences, disputes or grievances between the parties that shall not have been settled after following the procedure set forth in Article V [grievance procedure] may be submitted to arbitration upon notice of either party ”.

Respondent contends and the Appellate Division has held that there is no arbitrable dispute. The controversy arises from the discharge by respondent of certain employees who did porter work at the Yonkers plant. Most of these employees were transferred to open jobs in the bargaining unit. The porter job has been continuously performed by employees of respondent since the union was certified as the collective bargaining representative in 1943. Respondent claims to have contracted with an outside corporation to perform this work. Almost all of those who have been laid off are presently employed by respondent in other capacities without loss of seniority. The memorandum decision by the Appellate Division, reversing Special Term, is as follows: ‘ ‘ Appellant entered into a contract with an independent contractor for the cleaning of appellant’s offices. Formerly such work was performed by members of respondent union, who have seniority rights under a collective bargaining agreement between the union and appellant. Upon commencement of the new means of cleaning the offices the said employees were transferred to other jobs, in accordance with their seniority rights. The union contends that an arbitrable dispute exists under the arbitration clause of the collective bargaining agreement. That clause provides for arbitration of all disputes, and provides further that the arbitrator has no power to add to, subtract from, nor modify the terms of the agreement. Concededly, the agreement contains no express provision prohibiting appellant from contracting out work. The court is required to determine whether the dispute relates to a matter within the scope of the collective bargaining agreement and whether it is arbitrable under the arbitration clause thereof. (Matter of General Elec. Go. [United Elec. Workers], 300 N. Y. 262.) Eespondent union has failed to carry the burden of establishing the existence of an arbitrable dispute. (Cf. Matter of Essenson [Upper Queens Med. Group], 307 N. Y. 68; United Steelworkers of America v. Warrior & Gulf Nav. Co., 168 F. Supp. 702.) ”

Respondent cites Matter of Curry, Inc. (Reddeck) (194 Misc. 527) where the employer contracted out work formerly done by its employees in one of its departments, and Matter of Berger (World Broadcasting System) (191 Misc. 1043, affd. 274 App. Div. 788) where the layoff was due to the discontinuance of the department of the business, in both of which cases it was held that no arbitrable dispute was presented. Also cited are Matter of Twentieth Century-Fox Film Corp. (Screen Publicists’ Guild) (17 Misc 2d 233); Matter of Towns & James (Federal Labor Union) (183 Misc. 181); Standard Refinery Union v. Esso Standard Oil (31 N. J. Super. 548); Matter of Carborundum Co. (Swisher) (17 Misc 2d 231); Local Union No. 600, United Auto Workers v. Ford Motor Co. (113 F. Supp. 834 [U. S. Dist. Ct., E. D., Mich.]).

Appellant union makes much of a seniority clause in the labor contract, and the circumstance that wages were reduced when the contract was signed in order to retain respondent (Otis Elevator Company) in Yonkers. The inference is sought to be conveyed that respondent became obligated by the contract to stay in Yonkers, and that the contract is violated by farming out to independent contractors any of respondent’s work. Wood v. Duff-Gordon (222 N. Y. 88, 91) is cited in arguing that although a promise to remain in Yonkers may be lacking, yet the writing is instinct with an obligation to do so. Dispensing with its porters by contracting for the performance of the work with an independent contractor is said to emasculate the bargaining unit piecemeal.

We entertain little doubt that a labor contract such as this does not preclude an employer from discontinuing certain operations essential to his business and letting them out to be performed by independent contractors. At the outset, however, a determination must be made concerning whether the porter job has in this instance been assigned to a bona fide independent contractor (Matter of Teschner [Livingston], 285 App. Div. 435, affd. 309 N. Y. 972). The union contends that this independent contract is merely a subterfuge to get these employees away from the coverage of the collective bargaining agreement. This contention is, in effect, that in actuality it is not an independent contract, but that the nonunion men who are now performing the work are really in the employment of respondent. The transaction is regarded by the union as a mere device to circumvent the labor contract.

In support of the union’s contention that these employees who are now doing this work are in the employ of respondent, affidavit is made by the president of the local stating that only part of the porter’s job involving maintenance of the office area has been taken away from employees in the bargaining unit, that the porter job is and has always been an integral and inseparable part of the company’s operation of its Yonkers plant, and that the persons who are performing the night porter work in the office area as ostensible employees of the independent contractor are actually doing this work in the same manner as other porters in other areas of the plant who are concededly in the direct employ of respondent. This work is averred to include such items as sweeping and disposing of refuse, cleaning toilets, washrooms, dressing rooms and other general porter and cleaning work. These employees who, it is claimed, are employed by an independent contractor, this affiant avers, use the same equipment and supplies that the other porters use, and the new workers who are claimed to be working for the independent contractor are, this affidavit states, subject to direct or indirect control and supervision of respondent regarding the details of the work.

These features of the new operation, it is argued, tend to establish that the independent contractor arrangement is color-able only and that these new employees are actually working for respondent itself. We are not called upon to decide whether this contention is true, but under the circumstances of the case enough has been shown in our judgment to create an arbitrable dispute concerning whether, at the time in question, these porter employees were really working for respondent. If that was the true fact, and if the independent contract is merely what is known in common parlance as window dressing, the union might be entitled to relief. We make no intimation concerning what is the true fact, but hold that it is for the arbitrators to determine whether this was a bona fide independent contract.

The order appealed from should be reversed and that of Special Term denying a stay should be reinstated, with costs to appellants in this court and in the Appellate Division.

Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel and Burke concur.

Order reversed, etc.


author: Yah Voobhis, J. Froessel, J. (dissenting).

text:
    In the Matter of Alan G. Kraemer et al., Respondents, against County Court of Suffolk County et al., Appellants.
    Argued May 13, 1959;
    decided July 8, 1959.

      John P. Cohalan, Jr., District Attorney (Harold Ashare of counsel), for appellants.
    I. The appeals were properly taken by the People to the County Court. (People v. Gehlberd, 272 App. Div. 914; People v. Levenstein, 309 N. Y. 433; People ex rel. Hirschberg v. Orange County Court, 271 N. Y. 151; People v. Craig, 295 N. Y. 116.) II. The Appellate Division erroneously assumed jurisdiction of these appeals by entertaining the order of prohibition application. (People v. Hattemer, 3 N Y 2d 1013; People ex rel. Livingston v. Wyatt, 186 N. Y. 383; Matter of Hogan v. Court of General Sessions of County of N. Y., 296 N. Y. 1; Reed v. Littleton, 275 N. Y. 150; Matter of Harris Motors v. Klapp, 296 N. Y. 242; Matter of Culver Contr. Corp. v. Humphrey, 268 N. Y. 26; Appo v. People, 20 N. Y. 531; People ex rel. Jerome v. General Sessions, 185 N. Y. 504.)

      Alan G. Kraemer, respondent in person and for Edmund F. Foley and others, respondents.
    I. Respondents were adjudged not guilty after trial and discharged and, therefore, the People have no right to appeal. (People v. Kraemer, 7 Misc 2d 373; People v. Reed, 276 N. Y. 5; People v. Tollman, 193 Misc. 563; People v. Gehlberd, 272 App. Div. 914; Reed v. Littleton, 275 N. Y. 150; People ex rel. Meyer v. Warden, 269 N. Y. 426.) II. The restraining order entered by the Appellate Division was a proper exercise of the court’s judicial discretion. (Matter of Culver Contr. Corp. v. Humphrey, 268 N. Y. 26; Appo v. People, 20 N. Y. 531; People ex rel. Jerome v. General Sessions, 185 N. Y. 504; Matter of Hogan v. Court of General Sessions of County of N. Y., 296 N. Y. 1.) III. The waters in Lloyd Point Basin are public navigable waters and may be used by the public for pleasure boating. (Lewis Blue Point Oyster Co. v. Briggs, 58 Misc. 55,129 App. Div. 574, 198 N. Y. 287, 229 U. S. 82; People v. Vanderbilt, 26 N. Y. 287; Scranton v. Wheeler, 179 U. S. 141; The Daniel Ball, 10 Wall. [77 U. S.] 557; Attorney General v. Woods, 108 Mass. 436; United States v. Appalachian

      Power Co., 311 U. S. 377; People v. System Props., 281 App. Div. 433; Anderson v. Reames, 204 Ark. 216; Lamprey v. State, 52 Minn. 181; Silver Springs Paradise Co. v. Ray, 50 F. 2d 356.)
   Yah Voobhis, J.

The underlying controversy is a criminal prosecution for trespass in violation of a local ordinance. Dropping anchors from boats to catch upon the bottom of a small estuary of Long Island Sound, known as Lloyd Point Basin, is claimed to have violated the property rights of a lessee of the land under water. The persons involved in this appeal were tried in Police Court in the Village of Lloyd Harbor and acquitted. (People v. Kraemer, 7 Misc 2d 373.) The People appealed to the Suffolk County Court, which entertained jurisdiction to hear the appeals by denying motions to dismiss them. (People v. Kraemer, 14 Misc 2d 42.) This proceeding, in the nature of prohibition under article 78 of the Civil Practice Act, was then instituted by the defendants in the criminal prosecutions on the theory that they could not twice be placed in jeopardy for the same offense. The Suffolk County Court has been restrained by this prohibition order from exceeding its jurisdiction by hearing those appeals.

Prohibition is the traditional remedy designed for this kind of situation 9Matter of Hogan v. Court of Gen. Sessions, 296 N. Y. 1, 7; Matter of Culver Contr. Corp. v. Humphrey, 268 N. Y. 26; People ex rel. Jerome v. Court of Gen. Sessions, 185 N. Y. 504). If, as the Appellate Division has held, what happened in Police Court amounted to a trial and acquittal for the reason that it developed on the trial that this is navigable water, then the successful defendants in the criminal trial are not subject to harassment by being obliged to prepare and argue appeals on the merits in order to obtain a determination that the Suffolk County Court lacks the jurisdiction which it has refused to renounce.

The return of the Police Justice to the County Court certified that these defendants (petitioners-respondents here) had been tried in Police Court and found not guilty. This was afterwards changed at the instance of the District Attorney, so as to state that the charges of trespass had been dismissed on the law. The amended return does not state that the informations were dismissed as insufficient in law. Regardless of whether the Police Justice could change his return, an examination of Ms opinion (7 Misc 2d 373) discloses that the dismissals were not based on insufficiency of the informations, but on the ground that the criminal charges had not been proved as matter of law. It developed on that trial that petitioners-respondents dropped anchor in navigable water. The informations were not insufficient in themselves. They do not allege or concede that this is navigable water. Even upon the argument in this court, the District Attorney refused to admit that Lloyd Point Basin is navigable. The People are not entitled to appeal for the reason that it developed upon the trial in Police Court that this area of water is navigable. Neither are the People entitled to appeal because there is no conflict in the evidence about its navigability. If it develops on a criminal trial that the facts are incontestably in favor of a defendant, with the consequence that on the evidence the Trial Judge has to dismiss the charge on the law, there is less reason for allowing the prosecution to appeal than though there were a conflict in the testimony.

Subdivision 3 of section 518 of the Code of Criminal Procedure permits an appeal by the People from an order setting aside or dismissing an indictment (or information) “on a ground other than the insufficiency of the evidence adduced at the trial ’ ’. Subdivision 5 disallows an appeal by the People “where a verdict of not guilty has been rendered.” This is not a case of the dismissal of these informations in police court as themselves insufficient in law. The charges were dismissed after trial, on the basis of facts adduced by the evidence or of which judicial notice was taken, which are held, as matter of law, to fall short of establishing the crime charged. To allow the County Court to assume jurisdiction of these appeals would be equivalent to allowing the People to appeal in any criminal action where a defendant has been discharged after trial by dismissal of the indictment or information at the close of the evidence, upon the ground that the prosecution has failed to prove a case.

The language quoted from subdivision 3 of section 518 of the Code of Criminal Procedure was adopted by chapter 832 of the Laws of 1942, upon recommendation of the Judicial Council, in order to correct a deficiency in that section which was highlighted by this court’s decision in 1937 in People v. Reed (276 N. Y. 5). In the Reed case, the court held that, under the then existing statutory provisions, the People could not appeal from an order made during the trial, dismissing an indictment on the ground that it failed on its face to charge a crime, even though the trial court’s ruling on the sufficiency of the indictment would have been appealable if it had been made on demurrer before trial or on motion in arrest of judgment after verdict.

In recommending the foregoing amendment to subdivision 3 of section 518, the Judicial Council emphasized that its purpose was to extend the People’s right of appeal to an order sustaining “ objections to the sufficiency of the indictment [raised] by a motion to dismiss ”, whether the motion was made “ before or after a jury had been called and whether before or after any testimony had been taken.” (See Fifth Annual Report of N. Y. Judicial Council, 1939, p. 41; Eighth Annual Report of N. Y. Judicial Council, 1942, p. 63.)

The amended subdivision 3, indeed, specifies that to be appealable the order dismissing the indictment must have been made ‘ on a ground other than the insufficiency of the evidence adduced at the trial ”; and the Judicial Council itself emphasized that the amendment ‘ ‘ would not allow an appeal from an order dismissing an indictment for reasons connected with the weight or sufficiency of the evidence”. (See Eighth Annual Report, op. cit., p. 62.)

It seems clear that the informations in the present case were not dismissed on the ground that they were legally insufficient on their face. The informations, charging trespass upon privately owned land under water, were undoubtedly sufficient on their face. The dismissal was based on the facts developed at the trial, which were reviewed in the Trial Judge’s lengthy opinion (7 Misc 2d 373), and which showed that the harbor in question, though man-made, was a navigable waterway (7 Misc 2d 380), and had been continuously utilized by various craft for a period of over 30 years (7 Misc 2d 377-378).

In short, although the informations were sufficient on their face, the Trial Judge, nevertheless, dismissed the charges as a matter of law on the basis of the evidence with respect to the navigable nature of the waterway and his views as to the public’s right of navigation over such a waterway. Since the dismissal was thus based on ‘ ‘ the insufficiency of the evidence adduced at the trial” to warrant conviction of trespass, as distinguished from any question as to the legal sufficiency of the informations as pleadings, appeal therefrom is excluded by the very terms of subdivision 3 of section 518.

The Judicial Council noted that there was a possible question of double jeopardy, even as regards the limited amendment recommended by it. (See Fifth Annual Report, op. cit., p. 41.) A much more serious question of double jeopardy would be presented if the amendment were interpreted to give the People a right of appeal from a dismissal, as in this case, ‘1 for reasons connected with the weight or sufficiency of the evidence ”.

The final order appealed from should be affirmed, without costs.

Froessel, J. (dissenting).

The petitioners herein were charged with trespass in dropping anchor, from their respective boats, upon private land under water, without the authority of the owner thereof, in violation of an ordinance of the Village of Lloyd Harbor. There is no dispute as to the facts. At the close of the People’s case, during a consolidated trial, petitioners’ attorney moved to dismiss the informations on the ground “ that navigable waters, no matter who owns the ground under the water, can be used by the public in their boats for anchoring ”. In doing so, petitioners in effect conceded the facts stated in the informations, but contended such facts constituted no violation as a matter of law. The court reserved decision.

Taking judicial notice (see n. 7 Misc 2d 373, 377) that the waters in question were navigable, based upon publications of the United States Coast and Geodetic Survey, the court dismissed the charges after trial, upon the law. It concluded (p. 384) “that when the owners of the harbor area caused their lands to be submerged by navigable waters, the public right of navigation, including as an incident thereto the right to anchor, immediately extended to the area”—the very basis of petitioners’ motion to dismiss. Its opinion (see 7 Misc 2d 373) was summarized in the original and amended returns as well as incorporated therein by reference. The inadvertent use of the words “ not guilty ” in the original return cannot override the true nature of the dismissal as clearly revealed in the record before us.

After appeal to the County Court, petitioners instituted this article 78 proceeding in the nature of prohibition, and were successful in the Appellate Division. We disagree with the conclusion of that court that the People had no statutory right of appeal.

That was the law at the time of our decision in People v. Reed (276 N. Y. 5) and when People v. Merrill (156 Misc. 637) was decided. In People v. Reed, where the motion to dismiss the indictment on the law was made, as here, at the end of the People’s case, and granted at the end of the whole case, Chief Judge Cbaíte pointed out (p. 9) that, while “ the defendant under our criminal procedure is entitled to the benefit of every reasonable doubt on the facts, the People should be entitled to any reasonable doubt a trial judge may have upon the law for, if he makes a mistake on the law, the People have no opportunity or method of reviewing his ruling, as strange as it may seem to us in this enlightened day”, adding (p. 14): 1 ‘ Until the Legislature has seen fit to make the rights of the People on appeal more explicit and certain we must adhere to the practice as it has been, and rule that none of these provisions of sections 518 or 519 give to the People the right to appeal from the dismissal of the indictment in this case.”

To overcome the effect of our decision, and upon renewed recommendations of the Judicial Council, the Legislature by chapter 832 of the Laws of 1942 enacted present subdivision 3 of section 518 of the Code of Criminal Procedure, as evidenced by “ Note of Commission” to this section (McKinney’s Cons. Laws of N. Y., Book 66, Part 2, p. 382), which states: “ Note of Commission.— Amendments by L. 1942, c. 832, affecting this section and section 519 were recommended by the Judicial Council. ‘ It changes the statutory right to appeal as interpreted by People v. Reed, 276 N. Y. 5 (1937) and would permit the people to appeal from a dismissal of an indictment granted as a matter of law if the order were made during the trial just as is now permitted when such an order is granted upon a demurrer to the indictment or upon a motion in arrest of judgment, etc. It would not allow an appeal from an order dismissing an indictment for reasons connected with the weight or sufficiency of the evidence. See Eighth Annual Report of the Judicial Council, p. 62; also Sixth Annual Report, p. 55; also Seventh Annual Report, p. 56.’ See also Fourth Annual Report, p. 60; Fifth Annual Report, pp. 40-41.”

Subdivision 3 of section 518 (made applicable to appeals from Courts of Special Sessions by Code Crim. Pro., § 750) provides that the People may appeal “ From an order of the court, made at any stage of the action, setting aside or dismissing the indictment on a ground other than the insufficiency of the evidence adduced at the trial ”. (Emphasis supplied.) The language is unambiguous, concise and sweeping. The legislative intent is clear. In this case we have an order of the Police Justice sitting as a Court of Special Sessions made m the course of the action — the stage is not determinative—following a motion to dismiss made at the end of the People’s case. The informations were dismissed “ on a ground other than the insufficiency of the evidence adduced at the trial ”, namely, on the law, the facts being undisputed. When the Legislature spoke of the dismissal of an indictment “ on a ground other than the insufficiency of the evidence adduced at the trial ”, we must assume it meant precisely what it said, and particularly so since its manifest purpose was to carry out our suggestion in the Reed case (supra).

Therefore, inasmuch as the dismissal was on the law alone, the People had the right to appeal therefrom. Whether or not the trial court’s determination of the legal question ruled upon is correct is not at present relevant. The People are entitled to have that question reviewed by the County Court (Code Crim. Pro., § 749) and, on further appropriate appeal, by our court. No appeal could be taken to the Appellate Division in any event. It is clear that the County Court to which this appeal was taken had the power to decide whether said appeal was properly before it under subdivision 3 of section 518, just as all appellate courts, including our own, have the power to determine whether or not appeals are properly taken. Appellate courts exercise that power every day. If the County Court decided that question erroneously, the remedy of appeal to our court was provided. Under these circumstances, the extraordinary remedy of prohibition was not available.

The order appealed from should be reversed, and the proceeding dismissed, without costs.

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

Order affirmed.


text:
    The People of the State of New York ex rel. George Harry Schaap, Appellant, against Walter B. Martin, as Warden of Attica Prison, Respondent.
    Argued May 27, 1959;
    decided July 8, 1959.

      Frank R. Bell for appellant.
    I. This sentence of from one day to life, being contrary to express statute, and being, by operation of law, denied its intended and proper function, is illegal and wholly contrary to the law of this State, depriving appellant of his right to due process of law as guaranteed by both State and Federal Constitutions, and as constituting a fraud upon the sentencing court itself. II. The sole ratio decidendi relied upon by the Wyoming County Court as controlling in this situation is not here applicable and, upon analysis, does not have any valid bearing upon the issues here before this court. III. Since, by operation of section 2182 of the Penal Law, appellant’s sentence of from one day to life, having a minimum term of less than one year, cannot be served in a State prison in this State; and since appellant, though sentenced by the trial court to a term of from one day to life, is compelled by operation of section 2182 to serve a sentence of from one year to life; and since á sentence of from one year to life is not now, nor ever has been authorized for punishment upon a conviction for violation of section 483-a of the Penal Law, the crime for which appellant was here sentenced; and since chapter 525 of the Laws of 1950, in that they fail to comply with the requirements of section 2500 of the Penal Law, cannot and do not supersede or control the terms and provisions of section 2182 of the Penal Law; it is respectfully urged that appellant’s sentence of from one day to life is wholly illegal, invalid and void under the controlling statutes of this State.

      Louis J. Lefkowitz, Attorney-General (Paxton Blair and J. Bruce MacDonald of counsel), for respondent.
    I. The Legislature had the constitutional right, in the exercise of the police power, to provide a special type of punishment for sex offenders, and to provide for psychiatric care with a view toward rehabilitation, II, In view of section 2500 of the Penal Law, it should be held that section 212 of the Correction Law must yield to subdivision 2 of section 2182 of the Penal Law and that, regardless of the language of the sentence, the prisoner was required to serve at least one year in prison. Consequently, sentence to a State prison was lawful.
   Van Voobhis, J.

Relator has been sentenced under section 483-a of the Penal Law to imprisonment for an indeterminate term, the minimum of which shall be one day and the maximum of which shall be the duration of his natural life. Enacted in 1950, this statute reflects a modern view of how to deal with sexual offenders. They are subjected to observation or treatment by psychiatrists and penologists, and the Board of Parole decides when they can safely be set at large.

This conception is not implemented at all points by the older procedure furnished by the Penal Law and the Correction Law. The question here is whether relator should have been sentenced to State prison, as he was, or to a penitentiary or county jail. He contends that he could not be sentenced to either and, therefore, must go free. Violation of section 483-a is called a felony, and felons ordinarily go to a State prison. It is necessary to determine what is the method provided for enforcement, and whether it was followed by the sentencing Judge.

The difficulty arises from the circumstance that subdivision 2 of section 2182 of the Penal Law says that no person shall be sentenced to a State prison if the minimum term for which he is sentenced be less than one year, and forbids the period of imprisonment in a State prison to be reduced in any case below one year unless by executive clemency. The last provision is also contained in section 2183 of the Penal Law. At first impression, this would appear to prevent relator’s sentence from being executed in the State prison to which he was committed, in view of the circumstance that his minimum term is one day. Upon the other hand, he could not be sentenced to a penitentiary or county jail, since his maximum term is more than one year (Penal Law, §§ 2181, 2182, subd. 1). These statutory conflicts were foreseen and resolved when section 483-a of the Penal Law was passed by chapter 525 of the Laws of 1950, which introduced this new method of punishment and rehabilitation in the case of sexual crimes, and modified the procedure by simultaneously enacting section 212 of the Correction Law. Notwithstanding the clauses in sections 2182 (subd. 2) and 2183 of the Penal Law purporting to prohibit reduction of the period of imprisonment in the State prison below one year, section 212 of the Correction Law provides that: “Every person sentenced to an indeterminate sentence and confined in a state prison, when he has served a period of time equal to the minimum sentence imposed by the court for the crime of which he was convicted, shall be subject to the jurisdiction of the board of parole. The time of his release shall be discretionary with the board of parole, but no such person shall be released until he has served such minimum sentence nor, except persons serving an indeterminate sentence having a minimum of one day and a maximum of his natural life, until he shall have served one year. The action of the board of parole in releasing prisoners shall be deemed a judicial function and shall not be reviewable if done according to law. ’ ’ (Italics supplied.)

This section of the Correction Law resolves the conflict. It modifies, in these cases, the direction of subdivision 2 of section 2182 of the Penal Law that no person shall be sentenced to imprisonment in a State prison if the minimum term is less than one year, by expressly providing that indeterminate sentences of one day to life are to be served in State prison, and, in such cases, it also modifies the command in subdivision 2 of section 2182 and section 2183 that the period of imprisonment in a State prison shall not be reduced below one year. This conclusion, which unmistakably results from section 212 of the Correction Law, is not destroyed by section 2500 of the Penal Law stating that the provisions of the Penal Law are not altered by subsequent inconsistent statutes which do not make explicit reference to the earlier law. It is a settled principle that the Legislature cannot declare in advance the intent of subsequent legislation, or its effect upon existing statutes (Mongeon v. People, 55 N. Y. 613; People v. Dwyer, 215 N. Y. 46, 51). After citing this principle in the Dwyer case, the court conformed section 2500 of the Penal Law to the principle of statutory construction that “ the courts will not construe a subsequent statute as repealing, altering or amending such former statute unless the intent so to do is clear and unmistakable.” If the intent to amend is clear and unmistakable, as it is in section 212 of the Correction Law affecting this situation, it is not fatal that the later act does not designate the earlier statute by title and number. Section 212 of the Correction Law does explicitly refer to sections 2182 (subd. 2) and 2183 of the Penal Law by reference to the language contained in them, viz., that no person shall be released 1 ‘ until he shall have served one year ”, conjoined with the necessary new proviso “ except persons serving an indeterminate sentence having a minimum of one day and a maximum of his natural life ”. Without this clause the expressed purpose of the new legislation would be defeated. Section 212 of the Correction Law refers to the earlier sections of the Penal Law by engrafting an exception appropriate to this case upon their phraseology. Were not the dead hand of section 2500 lifted by the enactment of a subsequent Legislature clearly and unmistakably modifying the former provision, the cardinal principle would be violated that no session of the Legislature can bind its successor. As was well said in People v. Cleary (13 Misc. 546, 549-550) any other interpretation would be to impute to the Legislature gross carelessness or ignorance, which is totally inadmissible, and “ No end of precedents can be cited to sustain the principle that when a revising statute covers the whole subject-matter of antecedent statutes the revising statutes virtually repeal the former enactments without any express provision to that effect. Butler v. Russel, 3 Cliff. (U. S. Circuit) 251; Patterson v. Tatum, 3 Saw. 164; Daviess v. Fairbairn, 3 How. (U. S.) 636; Norris v. Crocker, 13 id. 429; King v. Cornell, 106 U. S. 395; Heckmann v. Pinkney, 81 N. Y. 211; People v. Gold & Stock Tel. Co., 98 id. 67; People v. Jaehne, 103 id. 182; In re Southworth, 5 Hun, 55.” Bracketing this type of indeterminate felony sentence with State prison, and adapting the serving of felony sentences to this new concept of punishment and rehabilitation in the case of sexual crime, supports the sentencing of relator by the trial court to a State prison for a term of one day to life, as the Board of Parole shall determine.

The order appealed from should be affirmed.

Chief Judge Conway and Judges Desmond, Dye, Fund, Fboessel and Burke concur.

Order affirmed.


author: Desmond, J. Fboessel, J. (dissenting).

text:
    In the Matter of William F. Ahern, Appellant, against Board of Supervisors of the County of Suffolk, New York, Respondent.
    Argued May 26, 1959;
    decided July 8, 1959.

      George W. Percy, Jr., for appellant.
    I. In the County of Suffolk, the Board of Supervisors cannot appoint an individual to the Board of Elections of Suffolk County as a Commissioner of Elections belonging to and representing the Democratic party on the said Board of Elections, unless that individual has been certified and recommended by the Chairman of the Suffolk County Democratic Committee. (Matter of Thomas v. Wells, 288 N. Y. 155; Matter of Kane v. Gaynor, 144 App. Div. 196, 202 N. Y. 615; People ex rel. Woods v. Flynn, 81 Misc. 279.) II. Where the facts are not in dispute, mandamus, rather than a proceeding in the nature of quo warranto, is the proper action to try title to public office. (People ex rel. Sulzer v. Sohmer, 211 N. Y. 565; People ex rel. McLaughlin v. Police Comrs., 174 N. Y. 450; People ex rel. Wren v. Goetting, 133 N. Y. 569; Matter of Gardner, 68 N. Y. 467; Matter of Teeple v. McKeon, 273 App. Div. 936; People ex rel. Lewis v. Brush, 146 N. Y. 60; People ex rel. Dolan v. Lane, 55 N. Y. 217; Matter of Bailey v. Berry, 240 App. Div. 771; People ex rel. Howard v. Board of Supervisors of Erie County, 42 App. Div. 510, 160 N. Y. 687; People ex rel. Kelly v. Common Council, City of Brooklyn, 77 N. Y. 503; Matter of Lenc v. Zicha, 223 App. Div. 158, 250 N. Y. 541; Matter of Sylvester v. Mescall, 277 App. Div. 961; Matter of Rivette v. Baker, 265 App. Div. 89; Matter of Schlobohm v. Municipal Housing Auth. for City of Yonkers, 270 App. Div. 1022, 297 N. Y. 911; Matter of Felice v. Swezey, 278 App. Div. 958; Matter of Mapes v. Swezey, 199 Misc. 997, 278 App. Div. 959.) III. Petitioner has standing to question the appointment made by the Board of Supervisors. (People ex rel. Daley v. Rice, 129 N. Y. 449; Matter of McCabe v. Voorhis, 243 N. Y. 401; McGovern Trucking Co. v. Moses, 277 App. Div. 758; Matter of Andresen v. Rice, 277 N. Y. 271; Matter of New York Post Corp. v. Leibowitz, 2 N Y 2d 677.)

      Pierson R. Hildreth, County Attorney (Pierre G. Lundberg and Edward Le Vanda of counsel), for respondent.
    I. Upon the conceded facts of this proceeding the Democratic party Chairman waived, renounced and forfeited any privilege or right to recommend a person for appointment as Commissioner of Elections. (People ex rel. McLaughlin v. Police Comrs., 174 N. Y. 450; Matter of Mullen v. Heffernan, 193 Misc. 334, 274 App. Div. 972, 298 N. Y. 785; People ex rel. Woods v. Flynn, 81 Misc. 279.) II. The sole appointing authority is the Board of Supervisors. Faced with the refusal of the party Chairman to recommend, the appointment by the board without such recommendation was valid. (People ex rel. Balcom v. Mosher, 163 N. Y. 32; Matter, of Thomas v. Wells, 288 N. Y. 155; People ex rel. Woods v. Flynn, 81 Misc. 279; Matter of Kane v. Gaynor, 144 App. Div. 196, 202 N. Y. 615; People ex rel. Mullarkey v. Board of Supervisors, 180 App. Div. 125; People ex rel. Chadbourne v. Voorhis, 236 N. Y. 437; Matter of Moore v. Walsh, 286 N. Y. 552; Matter of Koenig v. Flynn, 258 N. Y. 292; Matter of Meyer, 209 N. Y. 386; Matter of Reynolds, 202 N. Y. 430; Macrum v. Hawkins, 261 N. Y. 193; Matter of Burns v. Wiltse, 303 N. Y. 319; Matter of Berger v. Walsh, 291 N. Y. 220.) III. The petition was properly dismissed by the Appellate Division upon the objections in point of law, and upon the facts admitted on the pleadings. (Matter of Carp, 221 N. Y. 643; Matter of Metz v. Maddox, 189 N. Y. 460; People ex rel. Sulzer v. Sohmer, 211 N. Y. 565; Matter of Teeple v. McKeon, 273 App. Div. 936; Matter of Gardner, 68 N. Y. 467; People ex rel. McLaughlin v. Police Comrs., 174 N. Y. 450; People ex rel. Wren v. Goetting, 133 N. Y. 569; Matter of Andresen v. Rice, 277 N. Y. 271; Matter of Walsh v. LaGuardia, 269 N. Y. 437.)

      Monroe Goldwater and Robert Conrad for Democratic State Committee of the State of New York, amicus curies.

    I. The challenged action of the Suffolk County Board of Supervisors was violative of the New York State Constitution and of the Election Law of the State of New York. (Matter of Kane v. Gaynor, 144 App. Div. 196, 202 N. Y. 615; People ex rel. Woods v. Flynn, 81 Misc. 279.) II. This article 78 proceeding is the proper one in which to obtain the relief sought, and the proceeding is properly brought by petitioner. (Matter of Sohlobohm v. Municipal Housing Auth. for City of Yonkers,
      270 App. Div. 1022; Matter of Rivette v. Baker, 265 App. Div. 89; Matter of Sylvester v. Mescall, 277 App. Div. 961; Mattet of Felice v. Swezey, 278 App. Div. 958; Matter of Lenc v. Zicha, 223 App. Div. 158, 250 N. Y. 541; People ex rel. Kelly v. Common Council, City of Brooklyn, 77 N. Y. 503; People ex rel. Howard v. Board of Supervisors of Erie County, 42 App. Div. 510, 160 N. Y. 687; Matter of Smith v. Dillon, 267 App. Div. 39; Matter of Pansmith v. Williams, 201 Misc. 759.) III. Petitioner is a proper party to bring this proceeding. (Matter of Rivette v. Baker, 265 App. Div. 89; Matter of Kornbluth v. Rice, 250 App. Div. 654, 275 N. Y. 597; Matter of Andresen v. Rice, 277 N. Y. 271; Matter of New York Post Corp. v. Leibowitz, 2 N Y 2d 677.)

      Henry M. Zaleski and Reginald C. Smith for William J. Leonard, Supervisor of the Town of Riverhead, amicus curies.

    I. Neither the Constitution nor section 30 of the Election Law provides for the nomination of a Commissioner by a party Chairman. II. The function of the Board of Supervisors was either governmental, legislative or quasi-judicial. (Matter of Thomas v. Wells, 288 N. Y. 155, 263 App. Div. 759; Matter of Cary v. Binghamton City Council, 265 App. Div. 83, 290 N. Y. 247; Matter of Murphy v. Britt, 163 App. Div. 734, 212 N. Y. 582; Matter of Felice v. Swezey, 278 App. Div. 958; Matter of Mapes v. Swezey, 278 App. Div. 959.) III. The law abhors a vacancy. (People ex rel. Kingsland v. Palmer, 52 N. Y. 83.)
   Desmond, J.

Petitioner, alleging that he “ is a resident, taxpayer and voter in the County of Suffolk, State of New York, and an enrolled member in the Democratic Party ”, brought this mandamus-type (Civ. Prac. Act, art. 78) proceeding against the Board of Supervisors of Suffolk County for an order to direct the board to revoke the appointment of Arthur M. Weiss as a Commissioner of Elections for the county. He prayed also that the court command the board to desist from appointing any person to the Suffolk County Board of Elections as representing the Democratic party of that county on said Elections Board, unless and until such person shall have been duly certified and recommended to the Supervisors by the Chairman of the Suffolk County Democratic Committee. The petition shows that on December 30,1958, the day before the expiration of his term, one Havens, the incumbent Election Commissioner representing the Democratic party in Suffolk County, resigned, creating a vacancy. On February 16, 1959 the Board of Supervisors appointed or attempted to appoint Arthur M. Weiss to the Board of Elections as the Democratic member although the name of Weiss had never been certified to the Board of Supervisors by the County Chairman of the Democratic Committee. The answering papers show—and it is undisputed — that prior to January 2,1959 the Chairman of the Suffolk County Democratic Committee, Adrian Mason, had certified and recommended himself to the Board of Supervisors pursuant to section 52 of the Election Law as a fit and proper person to be appointed a Commissioner of Elections representing the Democratic party. On January 2, 1959 the Board of Supervisors voted on this recommendation but unanimously rejected it. On three later occasions County Chairman Mason resubmitted his name and three times the Board of Supervisors unanimously rejected it. Chairman Mason stated publicly that he would continue to recommend himself and no one else for the position of Commissioner of Elections. On February 16, 1959 the Board of Supervisors, on motion of a Democratic member, appointed Arthur M. Weiss, an enrolled Democrat, to fill the vacant position although the name of Weiss had not been submitted by the Chairman of the Democratic County Committee as required by subdivision 2 of section 52 of the Election Law. Meanwhile, William F. Ahern, the same citizen and enrolled Democratic party member who later brought this present proceeding, had brought an injunction action against the other (Bepublican) Commissioner of Elections and against other county officials alleging, in substance, that the Board of Elections had no legal existence and could not function and was not authorized to function since one member only was in office. In that injunction action, on January 22, 1959, a Supreme Court Justice granted a temporary stay which was afterwards vacated (see 7 A D 2d 546).

This present article 78 proceeding came on for argument at Special Term on the petition, answer and various exhibits. That court wrote an opinion in which it held: first, that mandamus was an appropriate remedy since there were no disputed facts; second, that the Board of Supervisors had acted without power in appointing Weiss without a recommendation from the Democratic County Chairman, and, third, that the resolution appointing Weiss was void.

The Board of Supervisors appealed to the Appellate Division, Second Department, which by a divided vote reversed the order below on the law and facts and dismissed the proceeding. The Appellate Division order refers to and incorporates the court’s opinion. That opinion says that the petition should be dismissed “asa matter of law or, in view of the nature of the legal questions presented and the factual situation disclosed, as a matter of discretion.” The point of law on which the Appellate Division reversed was that petitioner, in his individual capacity as a taxpayer, resident and voter, had no clear legal right to enforce and that, accordingly, he had no right to bring a mandamus proceeding. The Appellate Division majority refrained from passing on the underlying legal question as to whether the Board of Supervisors can under any circumstances appoint an Election Commissioner not recommended by the County Chairman. The dissenters in the Appellate Division were of the opinion that mandamus was an appropriate remedy, that the Board of Supervisors acted beyond its powers and that the mandamus order was validly granted by the court below.

In the majority Appellate Division opinion there are set forth the reasons which inclined the court to say that, aside from questions of law, the situation was such as to move the court to exercise its discretion in striking down the mandamus order. The Appellate Division majority pointed out that if the appointment of Weiss were held invalid there would be in office in Suffolk County a single Election Commissioner without any right or power to perform the board’s duties and that this situation might ‘ result in a complete breakdown of the public service performed by the Board of Elections, and the consequent disenfranchisement of the voters of Suffolk County.” The Appellate Division went on to say that mandamus is an extraordinary remedy, the issuance of which is to a great extent discretionary and that the courts are reluctant to issue it if disorder and confusion in public affairs would result, even in cases where there might be considered to be a strict legal right to enforce. That latter language and thought were taken from Matter of Andresen v. Rice (277 N. Y. 271, 282), where our court, although holding that noncompetitive appointment of State police officers was unconstitutional, refused to remove the officers theretofore illegally appointed or to go further than to declare that future appointments must be from competitive examination lists.

In another part of the majoriity opinion in the present case, the Appellate Division held that the question as to whether the Board of Supervisors could ever under any circumstances appoint a person not certified by the party Chairman should not be decided on a record like the present one but may be better decided after all the facts are presented and determined ”.

It is completely clear here that the Appellate Division not only said but meant that its reversal was not only on the law (that is, that petitioner had no standing) but was, in addition and alternatively, an exercise of the court’s discretion because of the damage to the public interest which might result from a mandamus order and, also, because this record does not fully set forth all the facts that might be pertinent to a determination of the question of whether the circumstances were such as to make it possible for the Supervisors to appoint an Election Commissioner not recommended by the County Chairman. This reversal and dismissal of the petition may not be held by us to have been an abuse of discretion. The Appellate Division was at pains to point out that the underlying questions of law and perhaps of fact could be determined in a quo warranto action in which the claimant Weiss could be made a party. He has not been made a party in the present mandamus proceeding.

Since, therefore, the reversal in the exercise of discretion was a proper one, we do not reach the question as to whether the Appellate Division’s reversal, insofar as it is on the law, is likewise correct.

The order should be affirmed, without costs.

Fboessel, J. (dissenting).

I dissent and vote to reverse and reinstate the order of Special Term. For the reasons hereinafter stated, it seems clear to me that the power to appoint rests only in the Board of Supervisors, which must, however, exercise such power within the statutory limitation that the appointee must be recommended by the party Chairman. The attempt to appoint Weiss was, therefore, a nullity and a violation of the constitutional and statutory scheme for a truly bipartisan Election Commission.

Petitioner, as is any citizen, is a legitimate party in interest, since the public interest is involved and interference with the regular, constitutional and statutory election processes is clearly taking place. In these circumstances it was an abuse of discretion to deny relief to petitioner. Quo warranto does not seem to be in order, since there are no rival claimants to the office. Moreover, Weiss does not claim office under color of right since his appointment was on its face violative of statute.

The argument that there was no alternative to the action taken by the board is without substance, since the party Chairman id making the statutory recommendation is performing a public duty. Accordingly, he too can be compelled to carry out such duty. If he, by his refusal to recommend any other person, is frustrating the process of appointment in an arbitrary and capricious manner, he may be compelled to perform his statutory duty properly. If, on the other hand, the board should continue to reject additional recommendations, it may be held to be arbitrary. It cannot, however, disregard the plain provisions of law and make appointments as it sees fit. The public interest requires that such illegal procedure be disapproved.

Judges Dye, Fuld and Yak Yoorhis concur with Judge Desmokd ; Judge Froessel dissents in an opinion in which Chief Judge Cokway and Judge Burke concur.

Order affirmed, without costs, upon the ground that the Appellate Division acted within its discretion when it dismissed this petition (see Matter of Andresen v. Rice, 277 N. Y. 271, 282). We pass upon no other question.


author:
Van Voorhis, J.
      Desmond, J. (dissenting).

text:
    In the Matter of Cosmopolitan Mutual Casualty Company of New York, Respondent, against Monarch Concrete Corporation et al., Judgment Debtors; Psaty & Fuhrman, Inc., Third-Party Appellant, and Hyman Greenberg, Individually and as Secretary of Psaty & Fuhrman, Inc., Appellant.
    Argued April 8, 1959;
    decided July 8, 1959.

      David Morgulas for third-party appellant.
    I. The judgment debtor had no property interest in the moneys, the subject of the transfers complained of, to which any lien or judgment against it could attach. (Ætna Cas. & Sur. Co. v. United States, 4 N Y 2d 639; United States Fid. & Guar. Co. v. Triborough, Bridge Auth., 297 N. Y. 31; Grimm Bldg. Material Co. v. Wilcox, 196 Misc. 966; Matter of Metropolitan Sand & Gravel Corp. v. Tosti, 196 Misc. 1030.) II. The rights of the judgment creditor could under no circumstances be greater than those of a receiver appointed in supplementary proceedings at the time of the service of the subpoena. III. The court below erred in holding that the payments made by appellant amounted to a private arrangement to favor selected creditors and to shield the debtor from those lawful procedures intended for the protection of all creditors. On the contrary, the payments represented the discharge of appellant’s obligation on its bond given to the City of New York. (Matter of Sverd v. Mostel, 283 App. Div. 128.) IV. Assuming, arguendo, that a debt did exist, then all of the moneys turned over by Psaty & Fuhrman, Inc., to Mbnarch, the judgment debtor, were trust funds under the Lien Law of the State of New York, and could under no circumstances be subjected to any lien or claim of the judgment creditor. V. The moneys were actually appellant’s and turned over to Monarch in trust to meet appellant’s obligation to others. VI. In any event the order must be reversed because respondent could under no circumstances show prejudice by reason of the payments made by appellant. (Matter of Short v. B. R. T. Corp., 279 App. Div. 631; Beverwyck Breweries v. Adelsberg, 164 Misc. 38.)

      Seymour Karpas, Marcus Schert and Merman D. Bragin for respondent.
    I. The facts indicate that the relationship existing between the judgment debtor and appellant went beyond the terms of the contract dated the 10th day of January, 1956. II. Since a contractual relationship existed between appellant and the judgment debtor at the time of the service of the third-party subpoena, it was incumbent upon the third party to cease making further payments to and on behalf of the judgment debtor subject to either further order of the court or a vacating of the third-party subpoena. (Matter of Dannenberg v. Leopold & Co., 188 Misc. 250; Grimm Bldg. Material Co. v. Wilcox, 196 Misc. 966.) III. Since the conduct of appellant was in violation of section 781 of the Civil Practice Act and since it has been found that the said conduct prevented respondent from collecting the balance of its judgment, appellants must be fined a sum equal to the loss caused respondent, i.e., the sum of $4,083.69 with interest from the 1st day of June, 1956. IV. Section 25b of the Lien Law of the State of New York does not apply in a determination of this motion. (New York Trap Rock Corp. v. National Bank of Far Rockaway, 177 Misc. 954, 260 App. Div. 1035; Matter of Marstan Plumbing Co., 176 Misc. 956; Allied Chem. & Dye Corp. v. Venezia, 279 App. Div. 1114.) V. Appellant’s argument that the judgment debtor had no property interest in the transferred moneys to which a lien or judgment against it could attach is in error. (Ætna Cas. & Sur. Co. v. United States, 4 N Y 2d 639; United States Fid. & Guar. Co. v. Triborough Bridge Auth., 297 N. Y. 31; Matter of Metropolitan Sand & Gravel Corp. v. Tosti, 196 Misc. 1030; Matter of Sverd v. Mostel, 283 App. Div. 128.) VI. Since the essential question involved in a determination of this appeal is a factual one hearing on the nature of the payments and since there is adequate support in the record for the findings of the Official Referee adopted by Special Term, the decision of the Appellate Division should be affirmed. (Bethlehem Steel Co. v. Turner Constr. co., 2 N Y 2d 456; Weiss v. Mayflower Doughnut Corp., 1 N Y 2d 310; Le Roux v. State of New York, 307 N. Y. 397; Emigrant Ind. Sav. Bank v. Willow Bldrs., 290 N. Y. 133; Meinhard v. Salmon, 249 N. Y. 458.)
   Van Voorhis, J.

The appeal is by a third party in a supplementary proceeding (Psaty & Fuhrman, Inc.) from ail affirmance of a civil contempt adjudication. A subpoena had been served on Psaty by the judgment creditor under section 781 of the Civil Practice Act containing a clause forbidding Psaty “ to make or suffer any transfer or other disposition of, or to interfere with, any property belonging to the judgment debtor, or to which he may be entitled or which may thereafter be acquired by or become due to said judgment debtor, or to pay over or otherwise dispose of any moneys due or to become due to such judgment debtor, not exempt by law from application to the satisfaction of the judgment, until the further order of the court ’ ’.

Psaty was the general contractor in the construction of an incinerator for the City of New York. The judgment debtor, Monarch Concrete Corporation, was a subcontractor. It has been found that Psaty paid money to Monarch in violation of the injunction clause in the subpoena, in consequence whereof Psaty has been fined $4,083.69 and interest with which to pay the indebtedness of the judgment debtor to the judgment creditor.

In lieu of an appearance at Special Term, Part II, Psaty submitted an affidavit, verified June 27, 1956, stating that the judgment debtor had been overpaid on its subcontract, and that there was nothing .owing to the judgment debtor .when the additional payments were made which have been held to constitute a violation of the injunctive clause in the third-party subpoena. This affidavit was accepted in lieu of testimony in the summary proceeding nor has its accuracy been questioned.

"What gave rise to this controversy is that in January, 1956 Monarch (the judgment debtor) declared that it could not fulfill its obligations under its subcontract with Psaty. By the date of service of the third-party subpoena, all of the contract price and extras had been paid without the retention of any reserve percentage, and a considerable sum in addition. Although nothing was owing from Psaty to Monarch, Psaty continued paying money to Monarch after it had been served with this subpoena. It is these latter payments which have been held to subject Psaty to penalties for contempt of court.

The reason for the overpayments by Psaty was that it had to finish the work which it had contracted to perform under its contract with the City of New York (part of which had been sublet to Monarch) and, rather than to discharge Monarch and finish the job itself or engage another subcontractor to complete the work, it elected to subsidize Monarch to do so itself. It does not matter whether these funds advanced to Monarch by Psaty to pay laborers, materialmen, insurance and other necessary expenses became trust funds, or were loans or gifts. In no event did they represent “ property belonging to the judgment-debtor ’ ’ nor indebtedness, which was all that the subpoena enjoined Psaty from paying or transferring to Monarch.

Psaty derived an advantage from this course of conduct, but that did not transform the money paid to Monarch into payment of indebtedness to Monarch or into property of Monarch in Psaty’s hands. The Appellate Division stated that “It is a reasonable inference that the course undertaken by Psaty was to its advantage as compared with the other means available to it ”, but that did not render Psaty guilty of contempt. The advantage was to enable Psaty to complete its general contract with the city so as to collect the balance of its contract price from the city. The circumstance that Psaty had to complete its contract on account of Monarch’s default, and took this means of doing so, did not mean that it was indebted to Monarch. The indebtedness was overwhelmingly the other way. If Psaty had severed its relations with Monarch, it could have taken judgment against Monarch for nearly $100,000 plus whatever additional extra cost it would have been obliged to incur in order to complete the work which Monarch had subcontracted but neglected to perform.

It has been held that on proof that these payments were made to or for Monarch’s account, the burden was cast on Psaty to establish that they were not funds due or to become due to Monarch. The difficulty in adhering to that ruling is, in the first place, that there is no presumption that these moneys belonged to Monarch or that Psaty committed a contempt. It was incumbent on the judgment creditor to establish through examination in the supplementary proceeding not only that these funds were paid to Monarch, but also that they were its property or were transferred in payment of an indebtedness so as to constitute a violation of the injunctive clause in the subpoena. Moreover, if there were any burden on Psaty, it was sustained by the filing of the affidavit of its secretary (accepted in lieu of testimony) showing that Monarch had already been overpaid. Even so, the situation might have been different if under a new arrangement with Monarch it were to have derived a profit for the completion of this work, but Monarch was not completing the job for a profit. By receiving these moneys from Psaty, which were not enough even to meet the unemployment and social security and wage obligations of Monarch, Monarch made no profit but was induced to continue so as to avoid the heavy judgment which would have been entered against it if Psaty had been obliged to complete the subcontracted work itself or through some other subcontractor. In that event there would have, been less for other creditors of Monarch. Instead of depleting Monarch’s assets available for creditors, Psaty was reducing Monarch’s liabilities. Under these circumstances, there was no violation of the subpcena, as matter of law, inasmuch as no property belonging to the judgment debtor was transferred to it, nor was any indebtedness paid to the judgment debtor.

The order appealed from should be reversed insofar as it adjudicates appellant in contempt of the third-party subpcena, the fine remitted and the motion to punish the appellant for contempt denied, with costs in all courts.

Desmond, J. (dissenting).

We are, of course, not examining into the motives or purposes of the Third Party ” (Psaty & Fuhrman, Inc., herein called Psaty ”) nor are we determining whether what Psaty did was for the benefit of the general situation and for the purpose of getting the job finished. The single narrow issue is: did Psaty violate the injunction contained in the third-party subpoena (Civ. Prac. Act, § 781) served on it on June 11, 1956? The Referee and Special Term and the Appellate Division all answered “ yes ” to that question. Unless we can say that there is no evidentiary basis at all for that finding of fact we, limited in jurisdiction as we are, must affirm the contempt adjudication.

The injunctive clause of the subpoena served on Psaty ordered Psaty not to “ pay over or otherwise dispose of any moneys due or to become due to ” Monarch Concrete Corporation, which was the judgment debtor of respondent Cosmopolitan Mutual Insurance Company. After and despite the service of that writ on June 11, 1956, Psaty paid direct to Monarch about $41,000 (an amount far in excess of Cosmopolitan’s judgment against Monarch) and paid to Monarch’s suppliers about $16,000. The Referee, affirmed by Special Term and the Appellate Division, has found as fact that these payments were not loans or trust fund dispositions but were the property of debtor Monarch when paid by Psaty, and that, accordingly, they violated the injunction. Unless this finding was wrong, absolutely and as matter of law, we cannot reverse it. The record does not permit such a reversal.

Proof of the payments by Psaty to Monarch and to the latter’s creditors after June 11, 1956 established, prima facie, violations of the injunction. The explanations offered by Psaty fail to overcome this showing—indeed, they confirm it. We will assume that Monarch had, prior to January 10, 1956, been overpaid by Psaty on the former’s performance of its subcontract with the latter and that the subcontract was still in part unperformed. But, regardless of that, the payments made to Monarch by Psaty after the service of the injunction were, as the voucher notations themselves said: pursuant to your letter dated 1/10/56.” By that January 10,1956 letter Monarch had agreed to continue performance of its subcontract on condition that Psaty advance moneys for Monarch’s payrolls and pay Monarch’s bills and charge all such amounts “ against the payments, if any, which might otherwise become due to ” Monarch ‘ ‘ in the ordinary course. ’ ’ Monarch continued the work, Psaty made the payments. How can it be said that as matter of law such payments made after the injunction date were not moneys due or to become due ” to Monarch?

As the Appellate Division pointed out, Psaty could have moved the court to modify or vacate the injunction or could have sought judgment creditor Cosmopolitan’s consent to the payments. Instead, Psaty by choice failed to inform Cosmopolitan of the payments or of the agreement under which they were being made. To quote the Appellate Division majority: A party who cavalierly chooses to ignore an injunctive order, regular on its face, must accept the consequences if the order is sustained ”.

The order appealed from should be affirmed, with costs.

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

Order reversed, with costs in all courts, and matter remitted to Special Term for further proceedings in accordance with the opinion herein.