text:
    Ella Sobel et al., Respondents, v. City of New York et al., Appellants-Respondents; W. J. Fitzgerald Paving Co., Inc., et al., Appellants, et al., Defendants.
    Argued January 3, 1961;
    decided February 23, 1961.

      George J. Conway for Slattery Bock Corporation, appellant.
    I. Plaintiff’s accident occurred after Slattery had properly back-filled the trench and fully completed its work under its contract and after its responsibility for the work had finished. (Kalas
      v. Consolidated Tel. & Elec. Subway Co., 211 App. Div. 280, 240 N. Y. 633; Probst v. New York Cent. R. R. Co., 237 App. Div. 562; Bergen v. Fortis Contr. Co., 270 App. Div. 1036, 297 N. Y. 856.) II. The court below erred in reversing the decision of the trial court dismissing the cross complaints of the city and Con Tel against Slattery. (Putvin v. Buffalo Elec. Co., 5 N Y 2d 447; Wrigley v. City of Watervliet, 165 App. Div. 740; Bush Term. Bldgs. Co. v. Luckenbach S. S. Co., 11 A D 2d 220; Ruping v. Great Atlantic & Pacific Tea Co., 283 App. Div. 204; Doyle v. Union Ry. Co., 276 N. Y. 453; Burke v. City of New York, 2 N Y 2d 90; Inman v. Binghamton Housing Auth., 3 N Y 2d 137; Jordan v. City of New York, 3 A D 2d 507, 5 N Y 2d 723; Salamy v. New York Cent. System, 1 A D 2d 27.) III. Plaintiff was guilty of contributory negligence as a matter of law. The court’s refusal to charge Slattery’s request was error. (McFarlane v. City of Niagara Falls, 247 N. Y. 340; Townes v. Park Motor Sales, 7 A D 2d 109.)

      James J. McLoughlin and Anthony J. De Cicco for W. J. Fitzgerald Paving Co., Inc., appellant.
    To permit recovery over by the Consolidated Telegraph and Electrical Subway Co. in this case would place a premium upon a public utility’s neglect of and disregard for the public’s safety upon the highway and is against public policy. (Boll v. Sharp 3 Dohme, 200 Misc. 1104, 281 App. Div. 568, 307 N. Y. 646; Grasioso v. City of New York, 11 Mise 2d 301; Buping v. Great Atlantic 3 Pacific Tea Co., 283 App. Div. 204; Falk v. Crystal Hall, 200 Mise. 979, 279 App. Div. 1071, 304 N. Y. 987; Bush Term. Bldgs. Co. v. Luckenbach S. S. Co., 11 A D 2d 220; Harrington v. 615 West Corp., 2 1ST Y 2d 476; Thompson-Starrett Co. v. Otis Elevator Co., 271 N. Y. 36; Dick v. Sunbright Steam Laundry Corp., 307 N. Y. 422; Wischnie v. Dorsch, 296 N. Y. 256; Burke v. City of New York, 2 N Y 2d 90; Schwarts v. Merola Bros. Constr. Corp., 290 N. Y. 145; Walters v. Bao Elec. Equip. Co., 289 N. Y. 57; Semanchuck v. Fifth Ave. 3 37th St. Corp., 290 N. Y. 412.)

      Leonard Hemley, John J. Kennelly, Bobert G. Shelter and Morris L. Wolf for Consolidated Telegraph and Electrical Subway Co., appellant-respondent.
    I. Defendants’ motion to dismiss should have been granted, since the existence of the irregularity was not the proximate cause of the accident. (Loughran v. City of New York, 298 N. Y. 320; Dowd v. City of

      Buffalo, 263 App. Div. 932, 290 N. Y. 895; Lynch v. City of Beacon, 269 App. Div. 757, 295 N. Y. 872; Boyne v. City of Buffalo, 269 N. Y. 657; Lobsenz v. Rubinstein, 258 App. Div. 164, 283 N. Y. 600.) II. The reversal by the Appellate Division of the trial court’s dismissal of the cross complaint by the city against Con Tel was error. (Burke v. City of New York, 2 N Y 2d 90; Putvin v. Buffalo Elec. Co., 5 N Y 2d 447; Schwartz v. Merola Bros. Constr. Corp., 290 N. Y. 145; Schnaier v. Bradley Contr. Co., 181 App. Div. 538.) III. There is no express agreement of indemnity upon which the city can recover over against Con Tel. (Doyle v. Union Ry. Co., 276 N. Y. 453; Miele v. City of New York, 270 App. Div. 122; Schnaier v. Bradley Contr. Co., 181 App. Div. 538.) IV. The city is not entitled to implied indemnification on principles of equity. (Schwartz v. Merola Bros. Constr. Corp., 290 N. Y. 145; Putvin v. Buffalo Elec. Co., 5 N Y 2d 447.) V. If the city, Con Tel and the subcontractors were all guilty of active negligence as the court below found, the ultimate responsibility would rest on the subcontractors. (Burke v. City of New York, 2 N Y 2d 90.) VI. Respondent Con Tel is entitled to indemnification from Fitzgerald for any liability that Con Tel may have to plaintiffs both under the agreement and under common-law principle. (Schwartz v. Merola Bros. Constr. Corp., 290 N. Y. 145; Burke v. City of New York, 2 N Y 2d 90; Mirsky v. Seaich Realty Co., 256 App. Div. 658; Jordan v. City of New York, 3 A D 2d 507, 5 N Y 2d 723.) VII. The Appellate Division correctly found that there was no waiver of the contractual provisions. VIII. The period of Slattery’s responsibility is a factual issue which was properly resolved below. IX. Respondent Con Tel is entitled both under the agreement and under common-law principles to indemnification from Slattery for any liability that Con Tel may have to plaintiffs. (Schwartz v. Merola Bros. Constr. Corp., 290 N. Y. 145; Burke v. City of New York, 2 N Y 2d 90; Jordan v. City of New York, 3 A D 2d 507, 5 N Y 2d 723.)

      Charles H. Tenney, Coryoration Counsel (Fred Iscol and Seymour B. Quel of counsel), for City of New York, appellant-respondent.
    I. The Appellate Division properly granted judgment to the city on its cross complaint against defendants Consolidated Telegraph and Slattery Rock, since the city was held liable to plaintiffs only because of its failure to correct a condition brought about by the affirmative active negligence of those defendants. (Doyle v. Union Ry. Co., 276 N. Y. 453; Rufo v. Orlando, 309 N. Y. 345; Bressingham v. City of New York, 286 App. Div. 811, 309 N. Y. 895; Coffey v. Flower City Carting & Excavating Co., 2 A D 2d 191, 2 N Y 2d 898; Boylhart v. Di Marco & Reimann, 270 N. Y. 217; Wrigley v. City of Watervliet, 165 App. Div. 740; McFall v. Compagnie Mar. Belge, 304 N. Y. 314; Wischnie v. Dorsch, 296 N. Y. 257; Putvin v. Buffalo Elec. Co., 5 N Y 2d 447; Runkel v. Homelsky, 286 App. Div. 1101, 3 N Y 2d 857; Lobello v. City of New York, 268 App. Div. 880, 294 N. Y. 816; Toth v. Kennedy & Smith, 259 App. Div. 855, 285 N. Y. 579; Anderson v. Liberty Fast Frgt. Co., 285 App. Div. 44; Fletcher v. County of Broome, 286 App. Div. 286; Di Prizzio v. Raymond Concrete Pile Co., 1 A D 2d 723; Trustees of Vil. of Geneva v. Brush Elec. Co., 50 Hun 581.) II. The terms of the permit issued to Consolidated Telegraph and under which Slattery Bock was enabled to excavate the public street obligated them to indemnify the city. (Doyle v. Union Ry. Co., 276 N. Y. 453; Reich v. City of New York, 6 A D 2d 556.) III. The Administrative Code likewise imposes upon those defendants a duty to save the city harmless from loss occasioned by their work. (Burke v. City of New York, 2 N Y 2d 90; City of Brooklyn v. Brooklyn City R. R. Co., 47 N. Y. 475; Schuster v. Forty-Second St., M. & St. N. Ave. Ry. Co., 192 N. Y. 403; City of Rochester v. Campbell, 123 N. Y. 405.)

      Moe Levine and Max Shamis for respondents.
    I. Slattery, as well as the city and Con Tel, was properly held liable to plaintiffs for negligently causing the injuries sustained by Ella Sobel. (Brown v. Welsbach Corp., 301 N. Y. 202; Weis v. Long Island R. R. Co., 262 N. Y. 352; Kalas v. Consolidated Tel. & Elec. Subway Co., 211 App. Div. 280, 240 N. Y. 633; Probst v. New York Cent. R. R. Co., 237 App. Div. 562; Bergen v. Fortis Contr. Co., 270 App. Div. 1036, 297 N. Y. 856; Coleman v. Guidone & Son, 192 App. Div. 120; Bressingham v. City of New York, 286 App. Div. 811, 309 N. Y. 895; Boylhart v. Di Marco d Reimann, 270 N. Y. 217.) II. The issues of contributory negligence and proximate cause were for the jury. (Loughran v. City of New York, 298 N. Y. 320; Dowd v. City of Buffalo, 263 App. Div. 932, 290 N. Y. 895; Lynch v. City of Beacon, 269 App. Div. 757, 295 N. Y. 872; Boyne v. City of Buffalo, 269 N. Y. 657; Lobsenz v.
      Rubinstein, 258 App. Div. 164, 283 N. Y. 600; McFarlane v. City of Niagara Falls, 247 N. Y. 340; Nolan v. King, 97 N. Y. 565; Kelly v. Doody, 116 N. Y. 575; Weston v. City of Troy, 139 N. Y. 281; Whalen v. Citizens’ Gas Light Co., 151 N. Y. 70; Friedlander v. Eagle Dry Goods Corp., 267 App. Div. 701; Chisholm v. State of New York, 141 N. Y. 246; Morrell v. Peck, 88 N. Y. 398; Minick v. City of Troy, 83 N. Y. 514; Pomfrey v. Village of Saratoga Springs, 104 N. Y. 459; Shook v. City of Cohoes, 108 N. Y. 648; Bullock v. Mayor, 99 N. Y. 654; McEvoy v. City of New York, 266 App. Div. 445; Bassett v. Fish, 75 N. Y. 303; Palmer v. Dearing, 93 N. Y. 7.)
   Van Voorhis, J.

The injured plaintiff tripped on a cobblestone in the pavement of the crosswalk on Third Avenue at the intersection of East Tremont Avenue in The Bronx. It had got out of place after the crosswalk had been temporarily repaired following an excavation job but before the paving stones had been cemented in final position. The record contains evidence upholding plaintiffs’ recoveries against the City of New York and the general contractor, Consolidated Telegraph and Electrical Subway Co. (described as Con Tel), and the judgment should likewise be affirmed insofar as it directs indemnification of the city by Con Tel. The city and Con Tel are not in pari delicto so as to prevent the application of the active and passive negligence rule (Trustees of Village of Geneva v. Brush Elec. Co., 50 Hun 581; Runkel v. Homelsky, 286 App. Div. 1101, affd. 3 N Y 2d 857; Lobello v. City of New York, 268 App. Div. 880, affd. 294 N. Y. 816; Anderson v. Liberty Fast Freight Co., 285 App. Div. 44; Fletcher v. County of Broome, 286 App. Div. 286). Having obtained the permit from the city for excavation in a public street, Con Tel—although it performed none of the work itself—remained subject to a nondelegable duty to plaintiffs until the pavement was finally restored (Administrative Code of City of New York, § 82d-3.0; Doyle v. Union Ry. Co., 276 N. Y. 453). It subcontracted with W. J. Fitzgerald Paving Co., Inc. (described as Fitzgerald) to replace the pavement in permanent condition. That subcontract contains provisions which amount to express indemnification of Con Tel (apart from the mere promise to pave) for damages occurring after the time when Fitzgerald’s responsibility began. The portion of the judgment is, therefore, affirmed requiring indemnification by Fitzgerald of Con Tel. The defendant Slattery Bock Corporation (described as Slattery) has not been proved liable to plaintiffs or any of its codefendants.

The crosswalk where the injured plaintiff fell had been excavated for underground electric power construction. Slattery subcontracted to do the excavation, backfilling and to repave temporarily (without cementing the paving stones), which meant leaving the job in condition for public use awaiting the permanent paving which was subcontracted tó Fitzgerald. Fitzg’erald’s work consisted in cementing the cobblestones together and putting them into final condition for street purposes. Nothing had been done by Fitzgerald at the time of the accident, although Fitzgerald had been notified two weeks previously by Con Tel to proceed with the work under the provisions of its subcontract. Slattery had completed the refill and had restored the cobblestones to position providing temporary pavement. These paving stones were uncemented and loose when Slattery finished, which was a necessary incident of the work, but there is no evidence that the paving stone on which the injured plaintiff fell was left sticking up in the air, which she testified was the cause of her fall, when Slattery completed its part of the work. Slattery is liable to plaintiffs if and only if it was under a continuing duty to maintain the pavement in its temporary state at the time of the accident after its subcontract had been fully performed. Slattery was not the permit holder; it was not the general contractor, and was chargeable with responsibility for only a part of the total project. Slattery must be exonerated from liability if, under the contractual arrangements between these parties, all duties on its part had been fulfilled at the time of the accident (Probst v. New York Cent. R. R. Co., 237 App. Div. 562; Kalas v. Consolidated Tel. & Elec. Subway Co., 211 App. Div. 280, affd. 240 N. Y. 633). Slattery was to maintain the trenches and openings after they had been backfilled and surfaced with temporary pavement under the terms of its subcontract, until 10 days after Slattery had notified Con Tel in writing that the condition of the trench was satisfactory for the restoration of the permanent pavement. Slattery completed the temporary pavement April 20, 1956. Ten days later, on May 1, 1956, Con Tel sent an order to Fitzgerald to proceed with the permanent paving as provided by Fitzgerald’s subcontract. Inasmuch as Fitzgerald could not install the permanent pavement until after Slattery had finished, Con Tel thus recognized that Slattery’s work had been completed. It is evident that Con Tel was not waiting for any written notice from Slattery that is now claimed to have been necessary in order to release Slattery from further responsibility for maintenance. Con Tel could not have notified Fitzgerald to proceed, as it did on May 1, without recognizing that Slattery’s part in the work had been finished. Its action shows that it knew that Slattery was through—i.e., in the language of the contract, that the condition of the trench was satisfactory for the restoration of the permanent pavement and had been for 10 days. The mere technical omission to serve the notice was immaterial under these circumstances.

The judgment appealed from should be modified so as to dismiss the complaint and the cross claims against appellant Slattery Rock Corporation, with costs in all courts, and, as so modified, affirmed.

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

Judgment modified in accordance with the opinion herein and, as so modified, affirmed, with one bill of costs in all courts in favor of appellant Slattery Rock Corporation against respondents Sobel and appellants-respondents, the City of New York and Consolidated Telegraph and Electrical Subway Co.


source: Caselaw Access Project

author: Chief Judge Desmond. Froessel, J. (concurring).

license: Public Domain

text:
    Sheila Greenberg, an Infant, by Louis Greenberg, Her Guardian ad Litem, et al., Appellants, v. Louis Lorenz et al., Doing Business as Pelham Dairies, Defendants-Respondents and Third-Party Plaintiffs. Bernice Foods, Inc., Third-Party Defendant.
    Argued January 3, 1961;
    decided March 2, 1961.

      Alfred S. Julien and Theodore Kamens for appellants.
    I. A warranty of merchantability accompanied this sale. (Ryan v. Progressive Grocery Stores, 255 N. Y. 388; Aron & Co. v. Sills, 240 N. Y. 588; Colella v. Smith-Fredenburg Corp., 239 App. Div. 274; Foley v. Liggett & Myers Tobacco Co., 136 Misc. 468, 232 App. Div. 822; Kelvinator Sales Corp. v. Quabbin Improvement Co., 234 App. Div. 96; Bencoe Exporting & Importing Co. v. McGraw Tire & Rubber Co., 212 App. Div. 136; Henningsen v. Bloomfield Motors, 32 N. J. 358.) II. The rule of Chysky v. Drake Bros. Co. (235 N. Y. 468) was conceived in error. (Greco v. Kresge Co., 277 N. Y. 26; Fredendall v. Abraham & Straus, 279 N. Y. 146.) III. The protection of the consumer public requires that the antiquated rule of Chysky be forever laid to rest. (Woods v. Lancet, 303 N. Y. 349; Swift & Co. v. Wells, 201 Va. 213.) IV. The courts of New York State have indicated their discomfort with the privity requirement by whittling out tortured exceptions to the rule. (Conklin v. Hotel Waldorf Astoria Corp., 5 Misc 2d 496; Ryan v. Progressive Grocery Stores, 255 N. Y. 388; Visusil v. Grant, 253 App. Div. 736; Hopkins v. Amtorg Trading Corp., 265 App. Div. 278; Bowman v. Great Atlantic & Pacific Tea Co., 284 App. Div. 663; Ultramares Corp. v. Touche, 255 N. Y. 170; Blessington v. McCrory Stores Corp., 305 N. Y. 140; Blackstone v. Miller, 188 U. S. 189; Parish v. Great Atlantic & Pacific Tea Co., 13 Misc 2d 33.) V. The need to do away with privity is not a legislative problem. (Arfons v. Du Pont de Nemours & Co., 261 F. 2d 434; B. F. Goodrich Co. v. Hammond, 269 F. 2d 501; Woods v. Lancet, 303 N. Y. 349.)

      William F. McNulty for respondents.
    I. Far from being ‘ ‘ conceived in error ’ ’, as claimed by plaintiffs, the privity rule as applied by this court to actions for the breach of the implied warranties of fitness and merchantable quality is fundamentally sound in principle and should not be abandoned. (Chysky v. Drake Bros. Co., 235 N. Y. 468; Schmidt v. Merchants Desp. Transp. Co., 270 N. Y. 287; Blessington v. McCrory Stores Corp., 305 N. Y. 140; Rinaldi v. Mohican Co., 225 N. Y. 70; Ryan v. Progressive Grocery Stores, 255 N. Y. 388; Race v. Krum, 222 N. Y. 410.) II. Despite the repeated attempts which have been made to destroy the privity rule in the field of implied warranty and thus extend the heavy burden which section 96 of the Personal Property Law places on the seller to third persons, the decision of this court in Chysky v. Drake Bros. Co. (235 N. Y. 468) still remains the settled law of New York. (Redmond v. Borden’s Farm Prods. Co., 245 N. Y. 512; Turner v. Edison Stor. Battery Co., 248 N. Y. 73; Ryan v. Progressive Grocery Stores, 255 N. Y. 388; Gimenez v. Great Atlantic & Pacific Tea Co., 264 N. Y. 390; Bourcheix v. Willow Brook Dairy, 268 N. Y. 1; Campo v. Scofield, 301 N. Y. 468; Salzano v. First Nat. Stores, 268 App. Div. 993; Massey v. Borden Co., 265 App. Div. 839; Hopkins v. Amtorg Trading Corp., 265 App. Div. 278; Bowman v. Great Atlantic & Pacific Tea Co., 284 App. Div. 663, 308 N. Y. 780; Block v. Empire State Doughnut Corp., 233 App. Div. 774.) III. If, as argued by plaintiffs, “ the protection of the consumer public ’ ’ requires that third persons be allowed to sue for the breach of the implied warranties created by section 96 of the Personal Property Law, either in the case of articles of food intended for human consumption or any other articles of personal property, the statute itself should be amended so as not only to specify the classes of cases in which third persons may sue but also to limit the class of third persons who may bring suit. (Lawrence v. Fox, 20 N. Y. 268; Ultramares Corp. v. Touche, 255 N. Y. 170.)
   Chief Judge Desmond.

The infant plaintiff and her father sue a retail food dealer for damages for breach of alleged warranties of fitness and wholesomeness (Personal Property Law, § 96, subds. 1, 2). Defendant, they say, sold the father a can of salmon for consumption in the family home. The tinned fish, so it is alleged, was unfit for use as food because it contained some pieces of sharp metal which injured the child’s teeth and mouth. The trial at City Court produced a judgment for both plaintiffs on the warranty theory. The Trial Justice commented on the trend away from such decisions as Chysky v. Drake Bros. Co. (235 N. Y. 468) and Redmond v. Borden’s Farm Prods. Co. (245 N. Y. 512) and held that although the father had bought the can of salmon the implied warranty extended to his 15-year-old daughter as a member of his household. The Appellate Term affirmed by a vote of 2 to 1. The majority in that court held that the old cases were no longer controlling. The Appellate Division, however, decided (nonunanimously) that the Chysky case is still law and that it forbids a recovery on warranty breach to anyone except the purchaser. As the case comes to us, the father has a judgment for his expenses but the child’s own suit has been dismissed for lack of privity.

Our difficulty is not in finding the applicable rule but in deciding whether or not to change it. The decisions are clear enough. There can be no warranty, express or implied, without privity of contract (Turner v. Edison Stor. Battery Co., 248 N. Y. 73, 74; Pearlman v. Garrod Shoe Co., 276 N. Y. 172) since a warranty is an incident of a contract of sale (Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 265). The warranty does not run with the chattel (Nichols v. Clark, MacMullen & Riley, 261 N. Y. 118). Therefore, as to food or other merchandise, there are no implied warranties of merchantability or fitness except as to the buyer (Chysky v. Drake Bros. Co., 235 N. Y. 468, supra; Ryan v. Progressive Grocery Stores, 255 N. Y. 388). A wife buying food for her husband may be considered his agent so as to allow a recovery by him (Ryan v. Progressive Grocery Stores, supra) and she can bring an action of her own if she makes the purchase and suffers from the breach of warranty (Gimenez v. Great A. & P. Tea Co., 264 N. Y. 390). When two sisters lived in a common household, the one who bought the food was deemed an agent of the other (Bowman v. Great A. & P. Tea Co., 308 N. Y. 780). The same (Bowman) theory was expanded to let both husband and wife recover (Mouren v. Great A. & P. Tea Co., 1 N Y 2d 884). But a dependent child is not a contracting party and cannot be a warrantee so no damages are due him (Redmond v. Borden’s Farm Prods. Co., 245 N. Y. 512, supra).

The unfairness of the restriction has been argued in writings so numerous as to make a lengthy bibliography (see, as examples: Starke, Implied Warranties of Quality and Wholesomeness in the Sale of Food, N. Y. L. J., April 8, 9, 10, 1957, p. 4, col. 1 [Vol. 137, Nos. 67-69]; 1943 Report of N. Y. Law Rev. Comm., p. 413; 1945 Report of N. Y. Law Rev. Comm., p. 23; 1959 Report of N. Y. Law Rev. Comm., p. 57; Miller, N. Y. State Bar Bulletin, Oct., 1952, p. 313; Melick, Sale of Food and Drink, p. 94; Prosser, Torts [2d ed.], p. 493; 29 Fordham L. Rev. 183 [Oct, 1960]; 44 Cornell L. Q. 608; 34 N. Y. U. L. Rev. 1442 ; 35 St. John’s L. Rev. 178 [Dec., I960]). About 20 States have abolished such requirements of privity, the latest being Virginia and New Jersey (Swift & Co. v. Wells, 201 Va. 213 [1959]; Henningsen v. Bloomfield Motors, 32 N. J. 358 [1960]). The Uniform Commercial Code (§ 2-318) provides that: A seller’s warranty whether express or implied extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty.” In 1943, 1945 and 1959 the New York State Law Revision Commission, each time after careful study, recommended that the implied warranty of fitness for use should extend to the buyer’s household, members, employees and guests. The Legislature did not act on any of the commission’s proposals.

The injustice of denying damages to a child because of nonprivity seems too plain for argument. The only real doubt is as to the propriety of changing the rule. Of course, objection will be made (as it has been made before in other such situations, see Woods v. Lancet, 303 N. Y. 349; Bing v. Thunig, 2 N Y 2d 656). But the present rule which we are being asked to modify is itself of judicial making since our statutes say nothing at all about privity and in early times such liabilities were thought to be in tort (Prosser, Torts [2d ed.], p. 507; 1 Williston on Sales [Rev. ed.], p. 502). Alteration of the law in such matters has been the business of the New York courts for many years (MacPherson v. Buick Motor Co., 217 N. Y. 382; Ultramares Corp. v. Touche, 255 N. Y. 170).

The Ryan, Gimenez and Bowman cases (supra) in our court show an increasing tendency to lessen the rigors of the rule. In Blessington v. McCrory Stores Corp. (305 N. Y. 140) we passed on a Statute of Limitations point only but we did not (as we could have under the old cases) dismiss for insufficiency a complaint which demanded damages for an infant’s death when the dangerous article had been purchased by the infant’s mother. There are a great many well-considered lower court decisions in this State which attest to the prevalent feeling that at least as to injured members of a buyer’s family the strict privity rule is unfair and should be revised.

So convincing a showing of injustice and impraeticality calls upon us to move but we should be cautious and take one step at a time. To decide the case before us, we should hold that the infant’s cause of action should not have been dismissed solely on the ground that the food was purchased not by the child but by the child’s father. Today when so much of our food is bought in packages it is not just or sensible to confine the warranty’s protection to the individual buyer. At least as to food and household goods, the presumption should be that the purchase was made for all the members of the household.

Sections 199-a and 200 of the Agriculture and Markets Law have no relevance here since those laws refer to food which has become unfit because of adulteration, decomposition, etc.

The judgment should be modified by reinstating the infant’s recovery and, as so modified, affirmed, with costs to the plaintiffs in this court and in the Appellate Division.

Froessel, J. (concurring).

I concur for modification here, but limited to the facts of this case. The infant plaintiff asked for the food purchased, and it was but normal that the father, who was in any event liable for her necessaries, should make the purchase on behalf of both (see Bowman v. Great A. & P. Tea Co., 308 N. Y. 780).

The Chief Judge has clearly and succinctly stated the problem before us, and has reviewed the applicable authorities. This is an action in contract based on a statute (Personal Property Law, § 96), not for negligence, and it is basic law that unless privity exists there can be no warranty, and where there is no warranty there can be no breach. We may not convert "an action in contract into what really amounts to an action in tort.

However much one may think liability should be broadened, that must be left to the Legislature. There are two sides to the problem before us — and one of them is the plight of the seller. It is just as unfair to hold liable a retail groeeryman, as here, who is innocent of any negligence or wrong, on the theory of breach of warranty, for some defect in a canned product which he could not inspect and with the production of which he had nothing to do, as it is to deny relief to one who has no relationship to the contract of purchase and sale, though eating at the purchaser’s table. As Justice Steuer aptly observed at the Appellate Term, “it may be odd that the purchaser can recover while others cannot, but it is odder still that one without fault has to pay at all”. This distinguishes these cases from situations such as presented in Woods v. Lancet (303 N. Y. 349) and Bing v. Thunig (2 N Y 2d 656), where the defendant has clearly committed a wrong.

It is for the Legislature to determine the policy of accommodating those conflicting interests after affording all concerned an opportunity to be heard. Indeed, the Legislature has not been unaware of the problem for, in three separate years —1943, 1945, 1959 — as noted by the Chief Judge, the New York State Law Revision Commission recommended that the benefits of implied warranties be extended to the buyer’s employees and to the members of his household, but the Legislature has declined to act, despite the introduction of legislation. I do not think we should now assume their powers and change the rules, which will undoubtedly affect many cases in which lawyers and litigants understood the law to be otherwise, and governed themselves accordingly.

Judges Dye, Fuld, Van Voorhis, Burke and Foster concur with Chief Judge Desmond; Judge Froessel concurs in result in a separate opinion.

Judgment accordingly.


author: Van Voorhis, J.

text:
    Denis Healy, Appellant, v. Jonas Rennert et al., Respondents.
    Argued January 9, 1961;
    decided March 2, 1961.

      Herbert A. McDevitt and Matthew E. McCarthy for appellant.
    I. It was error to permit defendant to show that plaintiff received a pension upon being dismissed from the Fire Department as physically unfit for any duty. (Bethlehem, Props. v. McGovern, 161 Misc. 111; Seidel v. Maynard, 279 App. Div. 706; Sainsbury v. Pennsylvania Greyhound Lines, 183 F. 2d 548; Lassell v. City of Gloversville, 217 App. Div. 323; Landon v. United States, 197 F. 2d 128; Capital Prods. v. Romer, 252 F. 2d 843; Herrick v. Sayler, 160 F. Supp. 25; Rayfield v. Lawrence, 253 F. 2d 209.) II. It was error to permit defendant to show plaintiff was a member of a health insurance plan. III. The court erred in refusing to charge the jury that violation of an ordinance was evidence of negligence. (Garrett v. City of

      Schenectady, 268 N. Y. 219; Booth v. City of Rochester, 258 App. Div. 849; Martin v. Herzog, 176 App. Div. 614, 228 N. Y. 164.) IV. It was error to exclude the testimony of Harold Toback in a former trial from evidence. (Profitos v. Comerma, 94 Misc. 334; Shaw v. New York Elevated R. R. Co., 187 N. Y. 186; Osborn v. Bell, 5 Denio 370; Wilbur v. Selden, 6 Cow. 162; Pratt, Hurst & Co. v. Tailer, 135 App. Div. 1; Cohen v. Long Is. R. R. Co., 154 App. Div. 603; Matter of White, 2 N Y 2d 309; People v. Qualey, 210 N. Y. 202; People v. Bruno, 220 N. Y. 702; People v. Fisher, 223 N. Y. 459; Travelers Fire Ins. Co. v. Wright, 322 P. 2d 417 [Okla.].) V. It was error not to permit the contents of the telephone conversation and of the correspondence with Toback in evidence. (Gaines v. Relf, 12 How. [53 U. S.] 472; Thorndike v. Boston, 42 Mass. 242.) VI. It was abuse of discretion to permit a severance of the trial of the Toback action, not in the interest of justice and prejudicial to a substantial right of plaintiff Healy. (Posner v. Rosenberg,
      153 App. Div. 249; Blake v. Michigan, S. & N. I. R. R. Co., 17 How. Prac. 228; Hill v. Alvord, 19 Hun 77; Ris v. Ris, 257 App. Div. 845; Dietz v. Glynne, 221 App. Div. 329; Frenkel v. Kress Taxi, 208 Misc. 374.) VII. The motion picture films should not have been admitted in evidence. VIII. It was error not to permit plaintiff’s attorney to cross-examine the expert witness as to the interest in this case. (Zimmer v. Third Ave. R. R. Co., 36 App. Div. 273; Brown v. Interurban St. Ry. Co., 43 Misc. 374.)

      Joseph Eckhaus for respondents.
    I. Appellant was guilty of contributory negligence, as a matter of law, upon his own testimony. (Goodman v. Brown, 164 Misc. 145; Weigand v. United Traction Co., 221 N. Y. 39; Kosowsky v. Coller, 227 App. Div. 740; Ward v. Clark, 232 N. Y. 195; Scott v. City of New York, 259 App. Div. 851; Davis v. Rogers Fuel Corp., 284 App. Div. 1024.) II. Appellant, having opened the door, the court was not in error in permitting testimony as to appellant’s retirement from the Fire Department. (Langley v. Wadsworth, 99 N. Y. 61; Turnpike-Road Co. v. Loomis, 32 N. Y. 127; People v. Slover, 232 N. Y. 264; Hine v. New York Elevated R. R. Co., 149 N. Y. 154; Di Tommaso v. Syracuse Univ., 172 App. Div. 34, 218 N. Y. 640.) III. No prejudicial error was committed by the admission of evidence that appellant was a member of a health insurance plan, inasmuch as same was elicited and introduced in appellant’s direct testimony and made a part of appellant’s own case. IV. The refusal of the court to additionally charge the jury that violation of an ordinance was evidence of negligence was proper. In the court’s unexcepted-to charge to the jury, it had already charged all pertinent ordinances and their application to the facts of this case. (Continental Nat. Bank v. Trademen’s Nat. Bank, 59 App. Div. 103, 173 N. Y. 272; Barbato v. Vollmer, 273 App. Div. 169; Katz v. Travelers Ind. Co. of Hartford, 233 App. Div. 369; Holder v. Abramson, 271 App. Div. 649; Carlock v. Westchester Light. Co., 268 N. Y. 345; Walker v. Bradt, 225 App. Div. 415; Martin v. Herzog, 176 App. Div. 614.) V. The testimony of Harold Toback given at the Magistrates’ Court was properly excluded. (New York County Nat. Bank v. Herrman, 173 App. Div. 814; Rychlovsky v. Rychlovsky, 252 App. Div. 893; Longacre v. Yonkers R. R. Co., 191 App. Div. 770.) VI. Toback, not having been a “ nonresident ” at the time of the hearing in the Magistrates’ Court, his former testimony was properly excluded. (Fink v. 37 West 36th St. Co., 244 App. Div. 622.) VII. The severance of the Toback case from appellant’s case was properly ordered by the Trial Justice. (Ashmead v. Sullivan, 198 App. Div. 885; Wrenn v. Moskin, 236 App. Div. 226, 262 N. Y. 619; Lauman & Co. v. State of New York, 2 Misc 2d 693.) VIII. Even in the absence of severance, the prior testimony of Toback would have been properly excluded. (Profitos v. Comerma, 94 Misc. 334.) IX. The contents of the telephone conversation and the letters between appellant and Toback were properly excluded, as same could not form the basis of compliance with section 348. (Lisi v. Lang, 286 App. Div. 771; Fieldston Garden Apts. v. City of New York, 7 Misc 2d 147, 3 A D 2d 903.) X. The motion picture film of appellant was properly admitted in evidence. (Boyarsky v. Zimmerman Corp., 240 App. Div. 361; Haley v. Hockey, 199 Misc. 512.) XI. The rate of pay of the photographer employed by respondents’ investigator was immaterial and properly excluded.
   Van Voorhis, J.

At the time of the accident in the early morning hours of January 31, 1956, plaintiff was a fireman employed by the Fire Department of the City of New York driving a car owned by the department. This car, a 1953 four-door Ford sedan, which was painted red, was equipped with a bell, a siren, two red fender lights, and an oscillating Mars light on the roof. Acting Battalion Chief Harold Toback, who accompanied plaintiff, was returning with him to the Battalion Headquarters after a fire.

Plaintiff testified that when he was proceeding west on Bergen Street before reaching its intersection with Schenectady Avenue, the traffic light changed to green when he was 50 feet from the corner. Defendant, Arnold Rennert, on the contrary, testified that the light was against plaintiff and in defendant’s favor when they collided at the intersection. Because of the accident, plaintiff claimed a compressed nerve injury in his cervical spine, necessitating the use of a cervical collar, as a result of which he was retired from the Fire Department for disability. The verdict of the jury was for the defendants.

Plaintiff testified on cross-examination that he had been with, the Fire Department for 18 years and that he would have been eligible for normal retirement in about two years after the accident at half pay. Defendants were permitted on cross-examination to develop that, because of the accident, plaintiff applied for and received immediately a disability retirement pension at three-quarters pay, or a larger pension sooner paid than he could have had without the accident. Plaintiff’s counsel objected throughout to this sequence of questioning and, in particular, objected to the crucial question as to retirement at three-quarters pay. He also moved unsuccessfully at the close of the trial to strike such evidence from the record. He argues that the jury may have come to the conclusion that the difference in the amount and time of commencement of the pension that plaintiff is receiving as a result of the accident and what he would have received on normal retirement would more than compensate him for his damages and may, therefore, have rendered a verdict in favor of defendants.

In most jurisdictions the damages recoverable for a wrong are not diminished by the fact that the party injured has been wholly or partly indemnified for his loss by insurance effected by him and to the procurement of which the wrongdoer did not contribute (13 A. L. R. 2d 355). In Standard Oil Co. v. United States (153 F. 2d 958, affd. 332 U. S. 301) it is stated that in the United States the prevailing rule seems to be that an injured person may recover for wages lost and medical expenses incurred during his incapacity even though such amounts were supplied by insurance or gratuitously. In Capital Prods. v. Homer (252 F. 2d 843) the court held that the defendant was not entitled to show in mitigation of damages that a fireman had secured medical retirement from the Fire Department at half pay under an established pension system.

For these reasons we consider that evidence concerning the retirement of plaintiff for disability at three-quarters pay was inadmissible and without probative force to affect this cause of action.

For the same reason, plaintiff claims that it was erroneous to have permitted defendants to show that plaintiff was a member of a health insurance plan (HIP). On direct plaintiff testified that he had received medical treatments at the Eastern Parkway Medical Center. Nothing was asked or testified to on direct examination with respect to any health insurance plan. Defense counsel, as he did with respect to the pension, was permitted on two occasions, over plaintiff’s objection, to ask whether he was a member of the HIP plan to which he answered that he was. The overruling of those objections was erroneous.

Defendants contend that, since they were not found guilty of negligence, these collateral source issues were never a topic of the jury’s deliberation, and hence their submission to the jury could not have been prejudicial. On this aspect of the ease we agree with plaintiff’s position that they may well have considered that plaintiff had sustained no damage, especially in view of the acceleration and increase in the amount of payments of plaintiff’s pension, and may have decided the case on the basis that plaintiff was not harmed rather than on questions of negligence and contributory negligence.

Defendants contend that plaintiff opened the door to the introduction of evidence regarding his pension and HIP insurance. There is no basis for such a contention regarding HIP, although the plaintiff’s testimony that on account of this accident he was “ put out ” of the Fire Department lent some color to a contention that plaintiff had opened the door to defendants to show the true facts respecting what bearing the accident did have upon his pension rights. Since a new trial must be had in any event, for other reasons, it is unnecessary to decide at this point whether the door was opened, but it is enough to point out that on the retrial the plaintiff should refrain from describing what occurred in that manner. It is sufficient if he testifies that he did not thereafter work in the Fire Department, which is a more accurate and less provocative manner of describing what actually occurred. He should refrain from testifying in words tending to indicate that he suffered some loss of rights in his connection with the Fire Department other than his loss of pay during his remaining tenure.

The trial court erred, furthermore, in instructing the jury with respect to the effect of the accident on plaintiff’s pension. The jurors were told correctly that they were not to consider moneys received by him as a pension which were not to be deducted from any award for loss of earnings, but added, at the request of defendants: “ I respectfully request your Honor to charge the jury that if the jury finds that in applying for retirement from the Fire Department the plaintiff was motivated by the fact that basing his application on the alleged injury received in the accident, his retirement would be on the basis of three-quarters of the regular pay as against what he would receive on normal retirement, namely fifty percent of his regular pay, then the jury may find that it was a continuing motive that carried into the claims of personal injuries alleged in this case. ’ ’

Plaintiff’s counsel excepted to the above instruction. Plaintiff’s motivation in applying for a pension had no bearing on the issues in this case. The jurors are likely to have been confused by the instruction, first, that they must not consider plaintiff’s disability pension in mitigation of damages, but that they might consider his motives in making the application for a pension. The whole subject should have been removed from the jnry.

Another error which plaintiff contends occurred at the trial consists in the exclusion of the testimony of Harold Toback, the Battalion Chief who was a passenger in plaintiff’s automobile, in the Magistrates’ Court on the trial of the defendant Arnold Rennert. Rennert was tried for having violated the Traffic Regulations of the City of New York, requiring drivers of ordinary vehicles to yield the right of way to an emergency vehicle. Toback testified with regard to the facts of the collision, and was cross-examined by Rennert’s counsel. Plaintiff attempted to introduce a transcript of this testimony into evidence under section 348 of the Civil Practice Act on the ground that Toback had since become a nonresident of New York State, having moved to Arizona after the accident. The exclusion of this transcript has nothing to do with whether Rennert was convicted or acquitted of the charge, and its correctness depends upon whether Toback’s former testimony was admissible due to the circumstance that he had become unavailable as a witness. The requirement of section 348 of the Civil Practice Act that the subject matter and the parties to both litigations shall be the same is to insure that the party against whom the testimony is offered had an adequate opportunity to cross-examine the witness (5 Wigmore, Evidence, § 1388; 142 A. L. R. 696; Richardson, Evidence [8th ed.], § 279; Fisch, New York Evidence, §§ 935, 936; Matter of White, 2 N Y 2d 309, 315-317). Rennert’s counsel had the opportunity and the inducement to cross-examine Toback concerning the same aspects of the aecident which were relevant upon this trial. It does not matter that in one instance it was a criminal action and the other a civil action, provided that the issue was so nearly identical that the cross-examination in both instances would normally cover the same field (Travelers Fire Ins. Co. v. Wright, 322 P. 2d 417, 422 [Okla.]). Schindler v. Royal Ins. Co. (258 N. Y. 310) and Walther v. News Syndicate Co. (276 App. Div. 169) are not directly in point inasmuch as they relate to the effect on a civil action of convictions in the criminal courts, but both of them indicate, whatever other questions may have been involved in them, that the distinction between civil and criminal actions is not necessarily controlling on a point of this nature.

The proof that Toback had taken up his residence in Arizona, so as to render his testimony admissible under section 348 of the Civil Practice Act, was erroneously held to be insufficient. This proof consisted of letters written by Toback in Arizona and letters sent to him in Arizona. They were admitted in evidence, over defendants’ objection, but only for the purpose of showing Toback’s mailing address. The contents of the letters were excluded. The court likewise excluded a telephone conversation between plaintiff and Toback, in which Toback told him that he was a resident of Arizona. A card from the files of the New York City Pension Bureau showing an Arizona mailing address for Toback, offered by plaintiff, was excluded. We think that not only should the testimony of Toback in the Magistrates’ Court have been received over the objection that there was not an identity of parties, but also that this evidence respecting Toback’s nonresidence was admissible and had probative force under these limited circumstances to establish that he had departed from the State with intention not to return (5 Wigmore, Evidence, § 1414, pp. 189-190; 6 Wigmore, Evidence, § 1725; Richardson, Evidence, §§ 270-271; Matter of Newcomb, 192 N. Y. 238; People v. Barber, 144 Cal. 705).

One other point needs to be mentioned, namely, the question of whether plaintiff was guilty of contributory negligence as matter of law. It has been argued that, since he testified that he “looked” to his “right and straight ahead” and “saw nothing ’ ’ immediately before the impact, his testimony was incredible as matter of law (Knapp v. Barrett, 216 N. Y. 226). It may well be that in the ordinary case such testimony would be construed as barring recovery on the ground that the person so testifying either saw the approaching vehicle on the intersecting street or did not really look to apprehend the possibility of danger. If it be assumed that plaintiff did see the Rennert automobile approaching on the intersecting street, or that, not seeing it, he is chargeable with knowledge of its presence, it would not follow that this plaintiff is guilty of contributory negligence as matter of law if he had the right of way- and could, in the exercise of reasonable care, have assumed that the defendants ’ vehicle would have conceded the right of way if the law so required. That, under the circumstances of this case, was a question of fact, even though whether plaintiff did have the right of way is a question of law (Ward v. Clark, 232 N. Y. 195, 198). In the case cited the opinion states: ‘‘A right of way, like a burden of proof, will establish precedence when rights might otherwise be balanced.” It is for that reason that, even though it be established as matter of law that one party had the right of way over the other, the issue of negligence or contributory negligence may still be a question of fact inasmuch as right of way rules are seldom absolute and are usually factors entering into the general context of reasonable care.

That plaintiff did have the right of way appears from the Traffic Regulations of the City of New York, relevant to the question of negligence and contributory negligence, which were read to the jury by the court. In substance these provide for certain privileges to “ authorized emergency vehicles ”, the definition of which includes a ‘6 fire department vehicle * * * returning to unmanned fire quarters.” The car driven by plaintiff came within this definition, since the Fire Battalion Chief was absent from the fire house which was “ unmanned.” Among the privileges extended to the “ authorized emergency vehicle ’ ’ under the special provisions of the section is the right to “ proceed past a red or stop signal * * *, but only after slowing down as may be necessary for safe operation ”.

Section 80 of the Traffic Regulations imposes a duty upon drivers of ordinary vehicles which must be observed at the immediate approach of authorized emergency vehicles. The driver of an ordinary vehicle must yield the right of way and immediately drive to a position parallel to and as close as possible to the nearest edge or curb when the driver of an authorized emergency vehicle is giving audible signal by siren, exhaust whistle, or bell. All of this applies only if plaintiff did not have the green light.

Counsel for plaintiff requested the court to charge "that violation of an ordinance is evidence of negligence ”. The court refused ‘ ‘ to charge other than as already charged. ’ ’ The court did not charge that a violation of the traffic regulations could be considered as some evidence of negligence. Defendants contend that the charge was adequate and that plaintiff did not except to it. When the court asked whether there were any exceptions or requests to the charge, plaintiff’s attorney stated: “No exceptions, Judge.” But to this he added the request above mentioned, saying: “ I may have missed it, but would your Honor charge the jury that violation of an ordinance is evidence of negligence? ” Plaintiff was entitled to that instruction (Major v. Waverly & Ogden, 7 N Y 2d 332, 336).

For the reasons stated a new-trial should be granted, with costs to plaintiff to abide the event.

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

Judgment reversed and a new trial granted, with costs to abide the event.


author: Chief Judge Desmond.

text:
    The People of the State of New York, Respondent, v. Francis Henry Bloeth, Appellant.
    Argued January 9, 1961;
    decided March 2, 1961.

      John B. Clarke, Peter V. Snyder and Morton M. Sider for appellant.
    I. The verdict should be set aside because defendant should not have been tried in Suffolk County. (People v. Broady, 195 Misc. 349; People v. Fernandez, 195 Misc. 95; People v. Nathan, 139 Misc. 345; People v. McLaughlin, 150 N. Y. 365.) II. The verdict should be set aside because defendant’s confession was obtained in violation of section 395 of the Codo of Criminal Procedure. (People v. Mummiani, 258 N. Y. 394; McNabb v. United States, 318 U. S. 332; Upshaw v. United States, 335 U. S. 410; Stein v. New York, 346 U. S. 156; Spano v. New York, 360 U. S. 315; People v. Leyra, 302 N. Y. 353.) III. The verdict should be set aside because the court misquoted section 1120 of the Penal Law, and erroneously charged the jury with respect to the defense of insanity. (Kleinfeld v. Roburn Agencies, 270 App. Div. 509; People v. Sherwood, 271 N. Y. 427; People v. Kelly, 302 N. Y. 512.) IV. The verdict should be set aside because the Trial Judge erroneously charged the jury that defendant had to prove beyond a reasonable doubt that the confession was involuntary. (People v. Russell, 266 N. Y. 147; People v. Downs, 123 N. Y. 558; People v. Weiner, 248 N. Y. 118; People v. Doran, 246 N. Y. 409; People v. Rogers, 192 N. Y. 331; People v. Farrell, 2 AD 2d 797.)

      John P. Cohalan, Jr., District Attorney, for respondent.
    I. The motion for a change of venue was properly denied. II. The confession of defendant-appellant was obtained in full compliance with section 395 of the Code of Criminal Procedure. (McNabb v. United States, 318 U. S. 332; Upshaw v. United States, 335 U. S. 410; Spano v. New York, 360 U. S. 315; People v. Leyra, 302 N. Y. 353; Stein v. New York, 346 U. S. 156.) III. The jury was not misled by the court’s charge with respect to the insanity statute. (People v. Sherwood, 271 N. Y. 427; People v. Schmidt, 216 N. Y. 324.) IV. Any alleged mistakes in the Trial Judge’s charge constituted only harmless error. V. The proof of guilt was overwhelming.
   Chief Judge Desmond.

The judgment is affirmed under section 542 of the Code of Criminal Procedure which directs us to give judgment without regard to technical errors which do not affect the defendant’s substantial rights. The proof of guilt here was overwhelming. At one point in his lengthy charge to the jury the Judge gave an explanation of section 1120 of the Penal Law which used the words and/or ” instead of or ” but this was not detrimental to defendant, especially since the New York law as to the defense of insanity was accurately stated in other parts of the charge.

At another place in the instructions to the jury the court used language which could be interpreted to mean that to destroy the effect of a confession the jury had to be convinced beyond a reasonable doubt that the confession was involuntary. The burden of proof was, of course, on the People not on defendant but in view of the immediately preceding instructions on this same subject we do not believe that the statement made by the court was prejudicial to defendant’s position. As to the confession itself, there was at most a question of fact as to whether it was obtained by force or other wrong. On this record the jury could reasonably find that defendant confessed voluntarily and in response to the advice of his wife and his attorney.

Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster concur.

Judgment of conviction affirmed, pursuant to section 542 of the Code of Criminal Procedure.


author: Burke, J.

text:
    The People of the State of New York, Appellant, v. Paul Felberbaum, Respondent.
    Argued November 29, 1960;
    decided March 2, 1961.

      Frank S. Hogan, District Attorney {Peter J. O’Connor and Richard C. Denser of counsel), for appellant.
    Section 699 of the Code of Criminal Procedure has no application to traffic infraction proceedings in the New York City Magistrates’ Courts. (People v. Cook, 45 Hun 34; People v. Yerman, 138 Misc. 272; People v. Burns, 19 Misc. 680; People v. Hammerstein, 150 App. Div. 212, 211 N. Y. 552; Salsburg v. Maryland, 346 U. S. 545; Packard v. Banton, 264 U. S. 140; Duncan v. Missouri, 152 U. S. 377; Bute v. Illinois, 333 U. S. 640; Uveges v. Pennsylvania, 335 U. S. 437; People ex rel. Reid v. Ruthazer, 4 A D 2d 164, 5 N Y 2d 889.)

      James P. Edstrom for respondent.
    Section 699 of the Code of Criminal Procedure applies to prosecutions involving traffic infractions in the New York City Magistrates’ Courts. (Squadrito v. Griebsch, 1 N Y 2d 471; People v. Hildebrandt, 308 N. Y. 397; People v. Banner, 5 N Y 2d 109; People v. Marincic, 2 N Y 2d 181; People v. Freudenberg, 5 N Y 2d 209.)
   Burke, J.

The sole issue presented on this appeal, here by permission, is whether, on arraignment for a violation of the Traffic Regulations of the City of New York, a City Magistrate must advise a defendant of his right to counsel.

The Appellate Part of the Court of Special Sessions of the City of New York, First Department, unanimously reversed two judgments of the City Magistrates’ Court of the City of New York, County of New York, convicting the defendant, on his plea of guilty, of two violations of article 6 (§60, subd. B) of the Traffic Regulations of the City of New York (speeding), and imposing as to each conviction a fine of $50, or in lieu thereof, a term of 10 days’ imprisonment, and revoking defendant’s driver’s license. The ground for reversal was the alleged denial of a constitutional right.

The order of the Appellate Part of the Court of Special Sessions must be reversed because the Legislature, consonant with its powers under the Constitution, has seen fit to limit the requirement that a Magistrate must inform a defendant of his right to the aid of counsel only to counties other than those constituting the City of New York (Code Grim. Pro., pt. V). The right to the warning required by section 699 of the Code of Criminal Procedure has not been extended by section 741, applicable only to Special Sessions Courts, to the cases of defendants arraigned in Magistrates’ Courts in the city.

The differences in the procedures to be followed were undoubtedly occasioned by the Legislature’s recognition of the dissimilarities in the several courts’ authority. In New York City, while a City Magistrate has exclusive jurisdiction to hear and determine traffic infractions and offenses, jurisdiction over misdemeanors is vested in the New York City Court of Special Sessions, excepting gambling cases, which were recently placed within the purview of the Magistrates’ Courts (Penal Law, § 724; N. Y. City Crina. Cts. Act, §§ 31,102,102-a). On the other hand, outside of New York City, the Courts of Special Sessions and the Police Courts exercise summary jurisdiction not only over traffic infractions and other offenses, but also over misdemeanors as well (Code Grim. Pro., §§ 56, 56-a, 62, 699-740-a; Town Law, § 31; Village Law, § 182; Second Class Cities Law, §§ 183, 184). It is also evident that the extreme circumstances present in cities having a population over 1,000,000 prompted the Legislature to provide for these differences with regard to traffic infractions (see Vehicle and Traffic Law, § 155).

Such legislation, of course, does not violate the equal protection clause of the Fourteenth Amendment of the United States Constitution since the statute applies equally to all citizens in cities of such a size (Budd v. New York, 143 U. S. 517, 548; cf. Bute v. Illinois, 333 U. S. 640).

The proposition that “ [defendants brought before any court should be informed of their right to counsel ” (1940 Report of N. Y. Law Rev. Comm., p. 95) is known to the Legislature as are the similar pronouncements of this court (e.g., People v. Marincic, 2 N Y 2d 181; People v. Banner, 5 N T 2d 109). Regardless then of our belief that the distinction that a Magistrate sitting as such need not warn the defendant of his right to counsel, while he must if he is sitting as a Court of Special Sessions is hardly logical, we are thus compelled to concede that an alteration in the law can only be accomplished by the Legislature.

The admonition necessitated by section 335-a of the Code of Criminal Procedure having been recited, the proceeding in the Magistrates’ Court was proper.

The order appealed from should be reversed and the matter remitted to the Appellate Part of the Court of Special Sessions for determination of the questions of fact, if any, pursuant to section 543-b of the Code of Criminal Procedure.

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

Order reversed, etc.


author: Foster, J.

text:
    The People of the State of New York ex rel. Michael Clemente, Appellant, v. Warden of Auburn Prison et al., Respondents.
    Argued January 18, 1961;
    decided March 2, 1961.

      Harris B. Steinberg and Jack M. Steingart for appellant.
    Clemente, having earned six months and ten days of “ good time ”, which was entered to his credit and never forfeited, was entitled, as a matter of law, to have that period deducted from the maximum term of his sentence. (People ex rel. Vanilla v. Denno, 7 N Y 2d 29; People v. Washington, 264 N. Y. 335; People v. Adams, 176 N. Y. 351; People ex rel. Cecere v. Jennings, 250 N. Y. 239; People ex rel. Kurzynski v. Hunt, 250 App. Div. 378, 275 N. Y. 652, 303 U. S. 654; Matter of Pizza v. Lyons, 278 App. Div. 65, 303 N. Y. 736; People ex rel. von Moser v. New York State Parole Bd., 179 Misc. 397, 266 App. Div. 896; Matter of Angione v. Murphy, 257 App. Div. 1020; People ex rel. Mason v. Brophy, 235 App. Div. 432; People ex rel. Williams v. Jackson, 5 A D 2d 922; People ex rel. Cheasty v. Warden of New York City Prison, 22 Misc 2d 441; People ex rel. Phillips v. Denno, 18 Misc 2d 963, 10 A D 2d 710; People ex rel. Trinker v. Denno, 20 Misc 2d 840.)

      Louis J. Lefkowitz, Attorney-General (Joseph J. Bose and Paxton Blair of counsel), for respondents.
    I. The plain wording of section 230 of the Correction Law, as well as the legislative history of those acts providing for the reduction of sentence, manifests a clear legislative intent that reductions be applied only to the minimum term of an indeterminate sentence. II. The courts clearly have determined that only the mi-mm-nm term of an indeterminate sentence is to be reduced, contrary to relator’s assertion that his maximum term he reduced as well. (Matter of Pizza v. Lyons, 278 App. Div. 65, 303 N. Y. 736, 343 U. S. 961; Matter of Bitz v. Ganavan, 257 App. Div. 247, 281 N. Y. 699; People ex rel. Atkins v. Jennings, 222 App. Div. 97, 248 N. Y. 46; People ex rel. Phillips v. Denno, 18 Misc 2d 963, 10 A D 2d 710; People ex rel. Williams v. Jackson, 5 A D 2d 922; People ex rel. von Moser v. New York State Parole Bd., 179 Misc. 397, 266 App. Div. 896; People ex rel. Mason v. Brophy, 235 App. Div. 432; People ex rel. Trinker v. Denno, 20 Misc 2d 840.) III. The reports of the Law Revision Commission and other similar committees indicate that only the minimum term of an indeterminate sentence is to be reduced. IV. "Reduction of the maximum term of an indeterminate sentence is contrary to the entire concept of parole.
   Foster, J.

Relator appeals from an order of the Appellate Division which unanimously reversed on the law an order of the Cayuga County Court sustaining a writ of habeas corpus and directing relator’s release from custody.

Relator was sentenced on March 16, 1956, upon his plea of guilty to the crime of perjury, first degree, to an indeterminate term of imprisonment of from 2% to 5 years. He was received in State prison on March 22,1956, and credited with 11 months’ jail time served prior to sentence. The Prison Board of Auburn Prison, where he was confined, decided on January 24, 1957 that he was entitled to 6 months and 10 days discretionary reduction of sentence pursuant to section 230 of the Correction Law. The expiration of his minimum term was accelerated by such amount of time so as to make him eligible for parole on March 7, 1957. Parole however was denied to him and the Parole Board determined that he should be held until the expiration of his maximum term, or April 21,1960.

Relator then sued out a writ of habeas corpus, contending that, irrespective of the Parole Board’s action, the time earned for good behavior should have been subtracted from his maximum sentence, and upon such a basis he was entitled to immediate release. The issue posed therefore is whether time earned for good behavior, pursuant to section 230 of the Correction Law, must be credited in reduction of both the minimum and maximum term of an indeterminate sentence imposed in 1956. The matter is wholly statutory. Subdivision 1 of section 230 of the Correction Law first defines a definite sentence and then an indeterminate sentence. Subdivision 2 provides: 2. Every prisoner confined in a state prison or penitentiary, except a prisoner sentenced for an indeterminate term having a minimum of one day and a maximum of his natural life, may receive, for good conduct and efficient and willing performance of duties assigned, a reduction of his sentence not to exceed ten days for each month of the minimum term in the case of an indeterminate sentence, or of the term as imposed by the court in the case of a definite sentence. The maximum reduction allowable under this provision shall be four months per year, but nothing herein contained shall be construed to confer any right whatsoever upon any prisoner to demand or require the whole or any part of such reduction.”

Subdivision 3 further provides: “ 3. In the case of a definite sentence prisoner, said reduction shall be computed upon the term of the sentence as imposed by the court, less jail time allowance, and in the case of an indeterminate sentence prisoner said reduction shall be computed upon the minimum term of such sentence, less jail time allowance. * * * Subject to the rules of the commissioner of correction, the maximum reduction of ten days in each month may, in the discretion of the board hereinafter provided for, be in whole or in part withheld, forfeited or cancelled, in accordance with the rules of the commissioner of correction for bad conduct, violation of prison rules or failure to perform properly duties assigned.”

Section 232 has to do with the monthly report of the Warden of each prison as to the reduction time allowed to any prisoner for good behavior.

Section 235 provides for a Prison Board which is to determine the amount of reduction of sentence to be allowed any prisoner.

Section 241 has to do with the form of order made by the Prison Board under section 235, and contains this significant language: “ a written order * * * of the board, declaring such reduction and specifying the date of expiration of the minimum term as reduced.” Further on this section states: “ The warden shall give immediate written notice thereof to each prisoner whose minimum term is thereby reduced. ’ ’

The legislative scheme that only the minimum term of an indeterminate sentence is to be reduced by time allowed for good behavior seems reasonably clear. And the legislative history of the statutes relative thereto lends support to this conclusion. For this purpose it is unnecessary I think to go back further than 1916. In that year section 230 of the Prison Law was amended to provide for compensation earned in prison. Prior to that time a reduction in sentence was specifically limited to a convict who had been sentenced to a definite term and for good behavior, and was granted by the Governor as a matter of discretion, and known as commutation. After the amendment of 1916 (L. 1916, ch. 358) the provision for commutation as to definite sentence prisoners was retained, but there was added a provision for the further reduction of a definite sentence that was called compensation. Thus a prisoner might earn 10 days in each 30 days for the performance of duties assigned, and once earned this time was irrevocable and automatically reduced his definite sentence. This amendment also provided- that such compensation might also be earned by a prisoner serving an indeterminate sentence ‘ ‘ in reduction of the minimum term ”.

In 1926 section 230 of the Prison Law was amended again (L. 1926, ch. 736), and compensation for labor performed to those sentenced to a definite term was wiped out except for those prisoners whose crimes were committed prior to July 1, 1926. In 1935 both compensation and commutation were abolished, and a discretionary reduction of sentences in the maximum of 10 days a month for both indeterminate and definite sentences was substituted (L. 1935, ch. 902).

It will be noted that the amendment of 1916 provided that compensation earned by a prisoner serving an indeterminate term was to be applied to his minimum sentence. This fact was recognized by the Law Revision Commission in its 1948 Report to the Legislature (N. Y. Legis. Doc., 1948, No. 65 [M], p. 539). The commission made no suggestions that reduction in the case of such a sentence be applied to the maximum term.

Again in 1948 several sections of the Correction Law, including section 230, were amended (L. 1948, ch. 631), but the substance of the 1935 statute, insofar as it provided for computing any reduction upon the minimum of an indeterminate sentence and upon the term of a definite sentence, remained unchanged. The purpose of those amendments was stated by the Law Revision Commission: Their purpose is to permit the Prison Boards to put into effect directly the reduction of sentences to state prisons and penitentiaries, for good behavior and diligent performance of duties, which are now made by the G-overnor, in the exercise of executive discretion, upon recommendation of the Prison Boards. * * * No change is made in the amounts of the reductions which are allowable, or in the manner in which the amount of reduction earned by each prisoner is determined by the Prison Boards, or in the conditions upon which reductions are granted.” (N. Y. Legis. Doc., 1948, No. 65 [M], pp. 521, 527, n.).

In none of the legislative history, as thus briefly stated and omitting other amendments not pertinent, is there any intimation of a legislative intent to apply a reduction to the maximum term of an indeterminate sentence. Some confusion may arise from the statutory direction that in the case of a definite term a reduction earned by good conduct is to be computed upon the term. There is a sound reason I believe for the distinction. An indeterminate sentence is more favorable, more merciful to the prisoner. It brings him within the jurisdiction of the Parole Board, and it should be pointed out that a prisoner sentenced to a definite term does not come within such jurisdiction (Correction Law, § 210). The Parole Board has nothing to do with definite sentences except for certain offenses specified in section 1945 of the Penal Law. Thus, if a prisoner serving a definite term is to obtain any benefit at all from a reduction for good time earned, it must be subtracted from his term, whereas a prisoner serving an indeterminate sentence has a chance of parole when the minimum of his sentence is served, and that minimum may be reduced by the reduction for good conduct. Of course he runs the risk of being denied parole for reasons having nothing to do with his conduct in prison, and it may be argued that discrimination exists between the two systems but, if so, it is a species of discrimination deliberately chosen by the Legislature. Reduction of the maximum term of an indeterminate sentence as a matter of right would be contrary to the entire concept of the parole system. As a matter of fact the earned reduction on a definite sentence is of not too much importance now, for indeterminate sentences are presently the rule, and a definite sentence is something of a rarity (see Penal Law, §§ 1935,1940,1941, 1942). Moreover, the reduction of the maximum term of an indeterminate sentence, when the Parole Board has determined that the prisoner is not a fit subject for release and should serve his maximum term, would tend to render ineffectual the parole system. In the case of a definite sentence, except as heretofore noted, the Parole Board has no jurisdiction and hence there could he no finding that the prisoner was not a fit subject for release.

Finally, sections 218 and 219 of the Correction Law indicate that it was the legislative intent to apply reductions only to the minimum term of indeterminate sentences.' They provide in substance that if a parolee violates his parole he must serve out the maximum term of his sentence. If he was entitled to reduction of his maximum sentence, the Legislature would have undoubtedly said so, and framed these sections with appropriate language to that effect.

The case relied upon by the County Court (People ex rel. Vanilla v. Denno, 7 N Y 2d 29) involved a prisoner convicted of a crime committed before July 1, 1926, who was sentenced to a definite term. It is not applicable to the situation presented here. There is a long line of cases which hold inferentially with the position taken by the People in this case (Matter of Bitz v. Canavan, 257 App. Div. 247, affd. 281 N. Y. 699; People ex rel. Atkins v. Jennings, 222 App. Div. 97, affd. 248 N. Y. 46; People ex rel. Williams v. Jackson, 5 A D 2d 922; People ex rel. von Moser v. New York State Parole Bd., 179 Misc. 397, affd. 266 App. Div. 896; People ex rel. Mason v. Brophy, 235 App. Div. 432; People ex rel. Trinker v. Denno, 20 Misc 2d 840). (See, also, the 1948 Report, Recommendations and Studies of the Law Revision Commission, supra.) The Legislature could not have been unaware of the construction placed upon the statute by the prison authorities and inferentially upheld by the courts over a period of many years.

The order of the Appellate Division should he affirmed.

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

Order affirmed.


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

text:
    In the Matter of American Jewish Congress, Respondent, v. Elmer A. Carter et al., Constituting the State Commission Against Discrimination, Respondents, and Arabian American Oil Company, Appellant.
    Argued January 5, 1961;
    decided March 2, 1961.

      Chester Bordean, George W. Bag, Jr., Lowell Wadmond and T. Barrington Semple, Jr., for appellant.
    I. Petitioner is not a party aggrieved under sections 297 and 298 of the Law Against Discrimination. (Matter of Walter, 75 N. Y. 354; Matter of New York State Comm. Against Discrimination v. Perricone, 10 Misc 2d 346, 5 A D 2d 849, 4 N Y 2d 874, 358 U. S. 801; Doolittle v. Supervisors of Broome County, 18 N. Y. 155; Matter of Personal Finance Co. v. Lyon, 203 Misc. 710; Matter of J. D. L. Corp. v. Bruckman, 171 Misc. 3; Matter of Civil Serv. War Veterans Protective Assn. v. Finegan, 249 App. Div. 822; Matter of Civil Serv. Employees Assn. v. Hurd, 202 Misc. 386; Schieffelin v. Komfort, 212 N. Y. 520; Pratt v. La Guardia, 182 Misc. 462; NAACP v. Alabama, 357 U.. S. 449; Uphaus v. Wyman, 360 U. S. 72; Pierce v. Society of Sisters, 268 U. S. 510.) II. Commissioner Carter’s granting of a bona fide occupational qualification exemption to Aramco with respect to its hiring and employment practices relating to employees expected to travel to Saudi Arabia is supported by adequate evidence and is not arbitrary or capricious. (Matter of Swalbach v. State Liq. Auth., 7 N Y 2d 518; Matter of Barton Trucking Corp. v. O’Connell, 7 N Y 2d 299; Matter of Jeanpierre v. Arbury, 4 N Y 2d 238; Matter of Wager v. State Liq. Auth., 4 N Y 2d 465; Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104; Red Hook Cold Stor. Co. v. Department of Labor, 295 N. Y. 1; Matter of Park East Land Corp. v. Finklestein, 299 N. Y. 70; Matter of Monachino v. Rohan, 13 Misc 2d 729; Ashwander v. Valley Auth., 297 U. S. 288; Tileston v. Ullman, 318 U. S. 44; United States v. Belmont, 301 U. S. 324; United States v. Pink, 315 U. S. 203; Russian Republic v. Cibrario, 235 N. Y. 255; Kleve v. Basler L.-V. Gesellschaft, 182 Misc. 776.) III. Commissioner Carter’s finding with respect to Aramco’s hiring and employment practices with respect to employees not expected to travel to Saudi Arabia is supported by adequate evidence and is not arbitrary or capricious.

      Shad Polier, Will Maslow, Leo Pfeffer and Joseph B. Robison for American Jewish Congress, respondent.
    I. The investigating Commissioner erred, as a matter of law, in granting appellant a ‘ ‘ bona fide occupational qualification ” exemption permitting it to ask questions concerning religion of applicants in New York for employment.in Saudi Arabia. (Grove Press v. Christenberry, 175 F. Supp. 488; F. C. C. v. RCA Communications, 346 U. S. 86; Davies Warehouse Co. v. Bowles, 321 U. S. 144; Matter

      of Barry v. O’Connell, 303 N. Y. 46; Securities Comm. v. Chenery Corp., 332 U. S. 194.) II. Appellant has failed to show Federal nullification of the State Law Against Discrimination as applied to its operations. Application of the Law Against Discrimination to appellant would not conflict with any Federal policy or interest. (Matter of United States of Mexico v. Schmuck, 294 N. Y. 265; Weilamann v. Chase Manhattan Bank, 21 Misc 2d 1086; United States v. Pink, 315 U. S. 203; New York v. Dibble, 62 U. S. 366.) III. Only treaties or formal agreements are entitled to precedence over State law. (Railway Mail Assn. v. Corsi, 326 U. S. 88; German-American Coffee Co. v. Diehl, 216 N. Y. 57; Missouri v. Holland, 252 U. S. 416; United States v. Belmont, 301 U. S. 324; United States v. Pink, 315 U. S. 203.) IV. A treaty or formal agreement or other executive action approving Saudi Arabian discrimination against Jews would be unconstitutional under the First and Fifth Amendments to the Federal Constitution. (Missouri v. Holland, 252 U. S. 416; Geofroy v. Riggs, 133 U. S. 258; Kent v. Dulles, 357 U. S. 116; Bolling v. Sharpe, 347 U. S. 497; United Public Workers v. Mitchell, 330 U. S. 75.) V. The courts of this State have long refused to apply foreign laws abhorrent to the public policy of the State. (Lemmon v. People, 20 N. Y. 562; Vladikavkazsky Ry. Co. v. New York Trust Co., 263 N. Y. 369; Lederkremer v. Lederkremer, 173 Misc. 587; Oscanyan v. Arms Co., 103 U. S. 261; The Kensington, 183 U. S. 263; Griffin v. McCoach, 313 U. S. 498.) VI. The “bona fide occupational qualification ’ ’ exception of the Law Against Discrimination is inapplicable, as a matter of law, to Aramco’s practice of investigating the religion of prospective employees. VII. The courts below properly held that the investigating Commissioner violated the requirements of administrative procedure in holding that Aramco did not ask discriminatory questions of applicants for work in New York State. (Matter of Barry v. O’Connell, 303 N. Y. 46; Matter of New York Water Serv. Corp. v. Water Power & Control Comm., 283 N. Y. 23.) VTII. Petitioner is a party aggrieved under sections 297 and 298 of the Executive Law. (Order of Conductors v. Swan, 329 U. S. 520; Wong Yang Sung v. McGrath, 339 U. S. 33; Matter of New York State Comm. Against Discrimination v. Perricone, 10 Misc 2d 346, 5 A D 2d 849, 4 N Y 2d 874, 358 U. S. 801; Tileston v. Ullman, 318 U. S. 44; Pierce v. Society of Sisters,
      268 U. S. 510; NAACP v. Alabama, 357 U. S. 449; Uphaus v. Wyman, 360 U. S. 72.)

      Jack Greenberg, TJmrgood Marshall and Norman C. Amaker for NAACP Legal Defense and Educational Fund, Inc., amicus curios.

    I. The basis for the Commissioner’s determination that Aramco was entitled to a bona fide occupational qualification exemption under section 296 (subd. 1, par. [c]) of the Executive Law is not an allowable basis under that law. (Matter of Barry v. O’Connell, 303 N. Y. 46; Bank of United States v. Planters’ Bank, 9 Wheat. [22 U. S.] 904; Ulen & Co. v. Bank Gospodarstwa Krajowego, 261 App. Div. 1; Hannes v. Kingdom of Roumania Monopolies Inst., 260 App. Div. 189; United States v. Deutsches Kalisyndikat Gesellschaft, 31 F. 2d 199; Coale v. Societe Co-op. Suisse Des Charbons, Basle, 21 F. 2d 180; The Beaton Park, 65 F. Supp. 211; The Uxmal, 40 F. Supp. 258; Matter of Holland v. Edwards, 307 N. Y. 38.) II. The practices of Aramco violate principles firmly embedded in the Constitution of the United States, the State of New York and the New York State Law Against Discrimination. (Bolling v. Sharpe, 347 U. S. 497; Railway Mail Assn. v. Corsi, 326 U. S. 88.)
   Froessel, J.

The present proceeding before us was commenced in 1956. The principal issue presented is whether “ probable cause ” existed “ for crediting the allegations of the complaint ” (Executive Law, § 297). On the basis of the record before us, both courts below have held that “ probable cause ” did exist here. Special Term went further and erroneously addressed itself to how the issues pertaining thereto might be ultimately resolved. The evidence supports the finding of probable cause, and the Appellate Division properly remanded the matter to the commission for proceedings in accordance with article 15 of the Executive Law.

Accordingly, two alternatives are now open to the commission under section 297, the paramount mandate here involved: (1) The investigating Commissioner “shall immediately endeavor to eliminate the unlawful discriminatory practice complained of by conference, conciliation and persuasion ”; or (2) he may refer the matter to the entire commission for a hearing.

The orders of the Appellate Division should be affirmed, without costs.

Van Voorhis, J. (dissenting).

In 1950 the State Commission Against Discrimination granted to Aramco a bona fide occupational qualification permitting the making of inquiries as to religion of applicants whose employment required an entry visa to Saudi Arabia or passage through countries en route which restrict visas on religious grounds. Numerous attacks have been made by petitioner, the American Jewish Congress, upon the issuance of that certificate by the commission. A complaint made in 1956 was referred by the commission to one of its members, Elmer A. Carter, who after extensive investigation made a decision on behalf of the commission on November 10, 1958 dismissing the complaint and continuing the bona fide occupational qualification accorded to Aramco in 1950. Petitioner applied to the commission for reconsideration and, in a lengthy opinion by the then Chairman, Charles Abrams, the complaint was referred back to Commissioner Carter for reconsideration, who examined into matters which Chairman Abrams suggested might change the result, but on March 26, 1959, adhered to the original determination, stating: “ With regard to complainant’s allegations as to Aramco’s interviewing and hiring for domestic employment, I investigated Aramco’s overall employment policies and practices and the resultant employment pattern. My investigation took account of a prior investigation made by Commissioner Pinto ancillary to William B. Shade v. Arabian American Oil Company, C-3172-52. I also investigated the matter independently. My ‘ Determination after Investigation and Conference ’ quotes, at page 8, from a letter from Aramco to Commissioner Pinto, which states that no applicant for domestic employment is requested to fill out an application for a Saudi Arabian visa. It should be borne in mind that in 1949 and 1950 Aramco revised all its employment application forms to accord with the Law Against Discrimination.”

The American Jewish Congress petitioned the Supreme Court to review each of these determinations by the Commission Against Discrimination. Special Term annulled the dismissal of the complaint by the commission and remitted the matter to the commission for further action in accordance with an opinion deciding the issue of discrimination on the merits in favor of the American Jewish Congress. The Appellate Division affirmed Special Term’s order, holding that probable cause had been shown as a basis for the complaint against Aramco, and upholding the remission to the commission for further action. It modified the order of Special Term to the extent of eliminating the direction that the commission must decide the complaint in accordance with Special Term’s opinion. That order of the Appellate Division is now on appeal to this court. The question before this court is, therefore, whether Commissioner Carter was correct in dismissing the complaint of the American Jewish Congress, whether the latter organization had capacity to institute the proceeding and, if so, whether probable cause has been shown as a basis for further proceedings by the commission against Aramco.

In his decision Commissioner Carter said: “ The primary objective of the present complaint is the abrogation of this resolution [of the commission in 1950] and the withdrawal of the bona fide qualification granted by the Commission.” The truth of that statement has been borne out by the argument made on this appeal in behalf of petitioner, which, although disavowing that objective, is plainly seeking to put Aramco out of business in Saudi Arabia. About two thirds of the presently known oil deposits in the world are contained in the Middle East. The importance of these oil reserves to the United States, as well as to the other nations of Europe, Asia and Africa, has been emphasized by the State Department, the essential position of which (as disclosed by the record on this appeal) has not changed since the bona fide occupational qualification was issued to Aramco by the Commission Against Discrimination in 1950 or since the decision made by Commissioner Carter in 1958. The Senate resolution and communications from Secretary of State Dulles and other officials in the State Department, which are relied upon to evidence a change in the United States policy in this regard, constitute what Commissioner Carter well describes as “ emphatic assurances * * * that the United States Grovernment is engaged in a continuous effort to alter the situation and the assurance of formal diplomatic action to end such distinctions of treatment of American citizens ” but “It is not, however, a repudiation of this principle if its attainment cannot be immediately realized.”

To this Commissioner Carter added that the State Department is “ the only level on which change can be effected.”

The Commissioner stated that before making his 1959 report ‘£ He personally conferred and subsequently communicated in writing with the United States Department of State since the claimed occupational qualification is premised upon the existence of a foreign statute or decree ”, and then Commissioner Carter concludes:

‘ ‘ The clear statement of an official of the State Department in 1950, to the effect that any interference in the arrangement between Aramco and Saudi Arabia would be inimical to the best interests of the United States, the reaffirmation in 1956 of that statement in a personal interview between the Investigating Commissioner and Mr. Lampton Berry of the State Department; letters from the Assistant Secretary of State to the Investigating Commissioner, dated September 23,1957 and October 6,1958 to the effect that the interests of the United States would be adversely affected by a determination which would disturb the existing relationship of Aramco with the Saudi Arabian government. •

“ No other conclusion can be reached from these contacts and communications. ’ ’

This carefully considered determination by the State Commission Against Discrimination (made through Commissioner Carter acting for the commission under its rules) cannot be disturbed without invading the province of the commission. Assuming the correctness of the determination that the American Jewish Congress is a party aggrieved, within the meaning of the law, as regards paragraph (c) of subdivision 1 of section 296 of the Executive Law but not of paragraph (a) of subdivision 1 of the section 296, it nevertheless cannot legally attack the action of the commission without showing facts sufficient to constitute probable cause to believe that the bona fide occupational certificate should be vacated or that its limits have been exceeded. Neither the petition nor supporting affidavits contain any basis for revocation of the occupational certificate by reason of change in United States Government policy. Neither has any evidentiary fact been adduced tending to show that Aramco has abused the limitation in the occupational certificate forbidding discrimination in connection with prospective employment in operations of the corporation conducted within the United States. The well-known policy of Saudi Arabia to endeavor to compel United States companies doing business in that country to refrain from employing Jewish people in their domestic operations is not sufficient to establish that Aramco has been influenced by Saudi Arabia in its conduct within this country. The commission has found that it has not been so influenced. If the fact were otherwise, it might be thought that in the record before this court petitioner would have been able to point out some specific instances, of discrimination of that kind. It has not done so. Probable cause is not shown, in my judgment, by the circumstance that Aramco has not produced whatever contracts it may have with Saudi Arabia. The issue here does not depend upon what Aramco has agreed to do or to refrain from doing in Saudi Arabia, but what its hiring policies have actually been within the United States. The record before the court is notable for its complete lack of support for these charges in that respect. The charges may, of course, be renewed in case of evidence to support them. The main thrust of petitioner is against discrimination in the interviewing and selection of employees who are to go or will be in line to go to Saudi Arabia, with the indirect objective, in the world as it is, of terminating the operations of American oil companies in the Middle East.

The taking of no appeal by the commission means nothing so far as the issues in the case are concerned. Both contestants are ably represented and, having made its decision, the commission is entitled to let its decision speak for itself without taking sides on this appeal.

For the reasons stated in Commissioner Carter’s decisions, the orders appealed from should be reversed and the petitions dismissed.

Chief Judge Desmond and Judges Dye, Fuld, Burke and Foster concur with Judge Froessel ; Judge Van Voorhis dissents in a separate opinion.

Orders affirmed.


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

text:
    Robert P. Weiss, as Administrator of the Estate of Providence L. Weiss, Deceased, Respondent, v. Harold Rubin et al., Appellants-Respondents, and Stanford Pulrang, Appellant.
    Argued January 12, 1961;
    decided March 2, 1961.

      J oseph J. Brophy, Desmond T. Barry and Richard E. Shandell for Stanford Pulrang, appellant.
    I. There was not sufficient proof of malpractice on the part of defendant Pulrang to warrant the submission of that issue to the jury. (Pike v. Honsinger, 155 N. Y. 201; Robbins v. Nathan, 189 App. Div. 827; Morwin v. Albany Hosp., 7 A D 2d 582; Baidach v. Togut, 8 A D 2d 838; Blackburn v. Baker, 227 App. Div. 588; Bakal v. University Hgts. Sanitarium, 198 Misc. 651, 277 App. Div. 572, 302 N. Y. 870; Richardson v. Denneen, 192 Misc. 871; Baker v. Wentworth, 155 Mass. 338; Kawacz v. Delaware, L. & W. R. R. Co., 259 N. Y. 166; Fierro v. New York Cent. R. R. Co., 256 N. Y. 446; Bullock v. Parkchester Gen. Hosp., 3 A D 2d 254, 4 N Y 2d 894.) II. If, on any view of the case, plaintiff was entitled to recover damages against defendant Pulrang, defendant Pulrang was entitled to indemnity over against the codefendants who were the only active tort-feasors in this case. (Putvin v. Buffalo Elec. Co., 5 N Y 2d 447; McFall v. Compagnie Mar. Belge, 304 N. Y. 314; Westchester Light. Co. v. Westchester County Small Estates Corp., 278 N. Y. 175; Tipaldi v. Riverside Mem. Chapel, 273 App. Div. 414, 298 N. Y. 686; Ruping v. Great Atlantic & Pacific Tea Co., 283 App. Div. 204.)

      John J. Tomich, Joseph Dean Edwards and Olin S. Nye for Harold Rubin, appellant-respondent.
    I. Defendant Pulrang was a joint tort-feasor and the evidence amply supports the jury’s verdict in that respect. (Robbins v. Nathan, 189 App. Div. 827; Morwin v. Albany Hosp., 7 A D 2d 582; Baidach v. Togut, 8 A D 2d 838; Richardson v. Denneen, 192 Misc. 871; Blackburn v. Baker, 227 App. Div. 588; Bakal v. University Hgts. Sanitarium, 198 Misc. 651, 277 App. Div. 572, 302 N. Y. 870; Bullock v. Parkchester Gen. Hosp., 3 A D 2d 254.) II. Defendant Pulrang was actively negligent and may not recover on his cross complaint. III. On the cause of action for conscious pain and suffering, the verdict was excessive and should be set aside.

      William T. Gallagher for St. John’s Riverside Hospital, appellant-respondent.
    There was ample evidence of negligence by defendant-appellant Pulrang. It being active and primary in nature, there may be no judgment over. (Phoenix Bridge Co. v. Creem, 102 App. Div. 354, 185 N. Y. 580; Scott v. Curtis, 195 N. Y. 424; Iroquois Gas Corp. v. International Ry. Co., 240 App. Div. 432; Schwartz v. Merola Bros. Constr. Corp., 290 N. Y. 145; Tipaldi v. Riverside Mem. Chapel, 273 App. Div. 414, 298 N. Y. 686; Adler v. Tully & Di Napoli, 274 App. Div. 1001, 300 N. Y. 662; McFall v. Compagnie Mar. Belge, 304 N. Y. 314; Putvin v. Buffalo Elec. Co., 5 N Y 2d 447.)

      Emile Z. Berman and Ambrose Doskow for respondent.
    I. The jury’s finding of negligence on the part of defendant Pulrang is supported by the evidence. (Baidach v. Togut, 8 A D 2d 838; Bakal v. University Hgts. Sanitarium, 198 Misc. 651, 277 App. Div. 572, 302 N. Y. 870.) II. The claim that the reduced verdict on the second cause of action is excessive presents no issue for review by this court. In any event, that claim is untenable. (Zipprich v. Smith Trucking Co., 2 N Y 2d 177; Dimon v. New York Cent. & H. R. R. R. Co., 173 N. Y. 356; Serano v. New York Cent. & H. R. R. R Co., 188 N. Y. 156.)
   Fboessel, J.

Decedent died as the result of a transfusion of incompatible blood administered during the course of an operation at defendant hospital.

The liability of the defendants anesthetist and hospital are conceded upon this appeal. As to the defendant surgeon, we are of the opinion that, on the record before us, the question of his negligence was properly submitted to the jury for their determination.

The proof showed that he initiated the blood bank in the Hospital ”; that it was hospital procedure to prepare a written order for the production of blood for transfusion purposes during the course of an operation (except in emergency situations, concededly not present here); that “ Nobody can order blood to the operating room except the Doctor”; that he had not ordered “ the production of the blood in the operating room at that time ”, and he knew that he had not ordered it—indeed, it had occurred to him at the time “ to inquire as to how that blood got to the operating room ”, but he did not do so.

The jury thus had a right to find that, in ordering the blood transfused without question and under those circumstances, defendant surgeon breached his duty of reasonable care to plaintiff’s decedent.

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

Van Voorhis, J. (dissenting).

On this appeal where the wrong type of blood was administered by transfusion, the evidence is ample to hold the hospital and the defendant Rubin, but the evidence is insufficient to hold the attending physician appellant Stanford Pulrang. In the midst of the operation which turned out to require an hour longer than had been anticipated, the anesthetist Keenan (agent for defendant Rubin) said to Dr. Pulrang: “ Doctor, I have blood ready for this lady. Shall I give it? ” Doctor Pulrang said yes, and the transfusion was administered. Under the rules and practice of the hospital, it was the sole responsibility of the hospital and not that of the attending physician to prepare and administer blood transfusions. The responsibility of the attending physician was confined to making decisions whether transfusions should be given, and directing the hospital to give them. In order to make certain that transfusions will not be given in cases where the attending physician has not directed them to be administered, the rules of the hospital provide that they shall be given only' on the written order of the physician except in emergencies. When a written order has been given, all the rest is done by the hospital. If Doctor Pulrang had given a written order for a transfusion in this instance, transfusion would have been administered exactly as it was without further participation by Doctor Pulrang. The only act of negligence ascribed to Doctor Pulrang is that, not having previously ordered the transfusion by written order, he should have become suspicious that something was wrong and checked on whether the hospital had performed its responsibilities in the preparation of the blood for transfusion. If he had given a written order (as he did in connection with a previous operation on the same patient), the entire responsibility for typing, erossmatching and administering the transfusion would have been upon the hospital. The attending surgeon would have been absolved from all responsibility in connection with its preparation and administration. The circumstance that, insofar as Doctor Pulrang was concerned, his need for a transfusion appeared to have been anticipated by the hospital does not seem to me to have changed this responsibility. The production of the blood ready to all appearances for the transfusion signified that whatever was necessary in the technical preparation had been performed and performed properly. Ko one questions that a transfusion was administered to the patient by Doctor Pulrang’s direction, which is the sole purpose designed to be served by the provision in the rules requiring a written order.

The sad outcome of this incident ought not to cause us to deviate from the concept of Bing v. Thunig (2 N Y 2d 656) that the attending surgeon is no longer responsible for the operation of the hospital in medical matters, which was the rationale underlying Schloendorff v. New York Hosp. (211 N. Y. 125). The modern hospital furnishes “ a large staff of physicians, nurses and internes, as well as administrative and manual workers” whereby “the hospital” does “undertake to treat the patient ’ ’. (Bing v. Thunig, supra, p. 666). Present-day hospitals do assume these responsibilities, which was the reason for the transference of liability in such matters from the attending physician to the hospital. In this instance the hospital made a grievous mistake. But the mere circumstance that it prepared to serve the patient by the administration of a transfusion without a written order from the physician, instead of awaiting his written order, has no tendency in my mind to put the surgeon on notice that the hospital had not in reality prepared the blood for his patient but for another patient who had previously been operated upon.

As regards appellant Pulrang, the judgment should be reversed and the complaint dismissed, with costs.

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

Judgment affirmed.