text:
    In the Matter of Lockport Union-Sun & Journal, Inc., Appellant, against Mabel B. Preisch, Clerk of the Board of Supervisors of Niagara County, N. Y., Respondent.
    Argued March 21, 1960;
    decided May 19, 1960.

      John T. De Graff and David E. Jeffery for appellant.
    I. The practical construction of the statute by both State and local officers for some 50 years resulted in unanimity of agreement that a ‘" detailed list ’ ’ must be published. II. The Legislature, by re-enacting the statute without change on numerous occasions, has adopted and re-adopted the practica] construction that has prevailed since the turn -of the century. III. Respondents and other proponents of the “summary statement” are attempting to usurp and to ask the court to usurp the powers of the Legislature. IV. The meaning of “tabulated statement” necessarily varies with the purpose to be accomplished by the tabulation. V. The construction adopted by the court below would nullify -the sound public purpose which the statute sought to accomplish.

      James P. Degnan, County Attorney (Thomas E. Hart of counsel), for respondent.
    I. A literal interpretation of section 12 of tiie Tax Law permits a summary statement of the exempt property to be furnished the newspaper. II. An examination of the history of section 12 of the Tax Law reveals that the Legislative intent is satisfied by a publication of a condensed statement of the tax exempt property. III. Practical considerations of this section indicate the Legislature intended the Clerk of the Board of Supervisors to submit only a summary statement of the exempt properties for publication.
   Van Voorhis, J.

This proceeding has to do with the publication of statements of exempt and partially exempt real property situated within the City of Lockport, Niagara County. For 50 years through 1954 each separate parcel was listed in the newspaper publication with the name of the person appearing as the owner on the roll. Commencing in 1955, a summary statement was published instead giving the aggregates of property classified as “ Veterans ”, “ Fraternal ”, “ Churches ” and other tax exempt categories. This change was not prompted by any statutory amendment, but by a new interpretation. In 1957 the Attorney-General issued a formal opinion that publication of the full and complete list is required as was done before 1955 (1957 Atty. Gen. 291). This proceeding was then commenced to compel publication of the detailed list in accordance with this ruling of the Attorney-General, by reverting to the practice prior to 1955.

The controlling statute was enacted in its essentials by chapter 438 of the Laws of 1904. With immaterial changes it became section 12 of the Tax Law, and, effective October 1, 1959, was transposed to section 496 of the Beal Property Tax Law (L. 1958, ch. 959). Prior to 1904 local publication of the complete list was expressly required (L. 1900, ch. 689). The Act of 1904, with which we are presently concerned, subject to immaterial amendments, required the clerks of the boards of supervisors to transmit to the State Board of Tax Commissioners a full and complete list and statement of tax exempt property situated within the several cities and towns, whereupon it was provided that ‘ ‘ the state board of tax commissioners shall tabulate such statements, and * * * cause to be published in ¡their annual report to the legislature, a complete tabulated statement, based upon the statement so transmitted to the state board of tax commissioners, of all real estate in the several counties of the state, which is exempt from taxation.”

That tabulation, be it noted, was to be “ complete ” by covering all of the real estate reported from all of the counties of the State, and was presumably to be compiled in such form that the Legislature should have statistical information concerning how much real property there was in the State in the various tax exempt categories.

Another tabulation was directed to be made by the same, statute, apparently for a different purpose, this one to be prepared not by the State Board of Tax Commissioners but by the clerks of the different boards of supervisors from the complete lists furnished to them by the local boards of assessors. Here this statute requires that the clerks of the boards of supervisors “ shall prepare a tabulated statement of the returns received [from the local boards of assessors] and shall post a copy thereof in a conspicuous place, and in all cities of the state cause a copy thereof to be published in the official paper or papers of said city at least once in each week ” for a specified number of successive weeks. The phraseology of section 12 of the Tax Law (in effect when this controversy arose) is identical in all material respects.

The Appellate Division held that the tabulation ordered to be prepared and published in cities by the various clerks of the boards of supervisors was to be the same kind of tabulated statement directed to be reported to the Legislature by the State Board of Tax Commissioners—later “ State Tax Commission ”, still later “ State Board ”. It is not questioned that these reports to the Legislature were adequate to the purposes of the Legislature, and their sufficiency is attested by the circumstance that the Legislature afterward amended the statute in other respects without altering the characterization of the “complete tabulated statement” with which the Legislature was to be supplied (L. 1916, ch. 323, § 5; L. 1933, ch. 470, § 24; L. 1958, ch. 959, § 496; Matter of Hotel Assn, of New York City v. Weaver, 3 N Y 2d 206, 214; Matter of Dobess Realty Corp. v. Magid, 186 Misc. 225, 231-232, per Shientag, J.). This might dispose of the present proceeding if it were to be assumed, as the Appellate Division majority did, that the “ complete tabulated statement” to be prepared by the State Board for the Legislature is intended to be identical with the “ tabulated statement ’ ’ of the exempt real property in cities to be prepared by the clerks of the boards of supervisors and published in the various municipalities.

The purpose of the tabulation submitted to the Legislature is different from the purpose of the tabulated statement directed, to be published locally in cities. As the 1957 opinion of the Attorney-General points out, the object of the information furnished to the Legislature “is to show the over-all effect of such exemptions upon the economy of the State. It is, therefore, perfectly proper to read the word ‘ tabulated ’ as requiring only a segregation of the number of parcels and the amount of exemptions in each tax exempt classification. On the other hand, the purpose of the publication in the newspapers is to advise local, taxpayers of the specific properties that have been exempted in cities and to guard against errors, discrimination and fraud. This purpose is wholly defeated by the publication of a summary statement and I am, therefore, constrained to read the words ‘ a tabulated statement of the returns received ’ in the sense that the statement is the preparation in tabular or table form from all of the various returns prepared by the local assessment officers of the city [sic]. Such a construction carries out the basic intent of this provision of the statute.” (1957 Atty. Gen. 294.)

This is probably a reason why the ‘ ‘ tabulated statement ’ ’ to be published in cities is to be prepared separately by the clerks of the boards of supervisors throughout the State instead of being taken from the tabulation of the State Board made in Albany.

The content of a tabulated statement may vary according to the object to be served by the tabulation. If the same statute for different purposes several times required the formulation of “ a column of statistics ”, the statistics in the column would be expected to vary according to the context. There can be different kinds of tabulated statements nor must a uniform meaning always be given to each. Indeed, the tabulations reported to the Legislature by the State Board or State Tax Commission have varied in form throughout the years.

The Appellate Division reasoned that, if the Legislature intended the, statement by the supervisors’ clerks to list the ■individual properties which are tax exempt, it would have said so as it did in the former chapter 689 of the Laws of 1900. There would have been no change in 1904 in the phraseology of these enactments, it is suggested, nor mention made of a tabulated statement if the intention from 1904 on had been that the clerks were to publish a list of the separate parcels. We think that no drastic change was intended, but that the -wards ‘ ‘ tabulated statement ’ ’ were used to direct publication in tabular form of the individual parcels of tax exempt real property with the names of the owners listed on the roll.

Whatever ambiguity may exist in this statute should be resolved in harmony with its practical construction by the officers charged with its enforcement during the long period from 1904 through 1954 (City of New York v. New York City Ry. Co., 193 N. Y. 543) and so as to further the object, of publication in the municipalities. The Legislature appears to have been actuated in this instance by the policy of subjecting tax exemptions to the scrutiny of the neighbors.

The order appealed from should be reversed and the relief demanded in the petition should he granted to the extent stated in this opinion, with costs in this court and in the Appellate Division.

Judges Dye, Froessel, Burke and Foster concur with Judge Van Voorhis; Chief Judge Desmond and Judge Fuld dissent and vote to affirm in the following memorandum: The statute before us requires, in one sentence, that the State Board of Tax Commissioners transmit to the Legislature ‘ ‘ a complete tabulated statement ’ ’ of tax exempt properties and, in another sentence, that the clerks of the boards of supervisors prepare “ a tabulated statement ” of such exempt properties and cause a copy to be published in the official paper. As the Appellate Division declared: “We do not believe that it is logically permissible to read these words [tabulated statement] differently, as they appear in two different places in a single statute. In both cases, they must be held to refer to the same type of statement. * * * It is conceded that the construction of the statute by the State officials was the correct one and that these tabulated summaries fully complied with the requirement that the State officials publish in their reports a complete tabulated statement \ The same words being used in imposing the posting and publication requirement upon the clerks of the boards of supervisors, the same construction must be given to that requirement.” In other words, it is manifest that the Legislature intended to impose- the same duty, in respect to the nature and content of the “ tabulated statement ” to be published, upon both the clerks of the boards of supervisors and the Board of State Tax Commissioners. Since the State officials are required to publish, coneededly, only a tabulated summary, that is all which the clerks of the boards of supervisors should be required to publish.

Order reversed, with costs in this court and in the Appellate Division, and the matter remitted to Special Term for further proceedings in accordance with the opinion herein.


source: Caselaw Access Project

author: Foster, J.

license: Public Domain

text:
    The People of the State of New York, Appellant, v. William Leonard, Respondent.
    Argued April 20, I960;
    decided May 26, 1960.

      John P. Cohalan, Jr., District Attorney (Harold Ashare of counsel), for appellant.
    I. The court properly took judicial notice that the beverages bought and sold were alcoholic beverages. (People ex rel. Lanci v. O’Reilly, 129 App. Div. 522, 194 N. Y. 592; People v. Cashdollar, 188 App. Div. 9; McDonnell v. United States, 19 F. 2d 801, 275 U. S. 551; People v. Marx, 128 App. Div. 828; People ex rel. Thomsen v. Commissioner of

      Correction, 115 Misc. 331; Bolivar v. Monnat, 232 App. Div. 33.) II. It was not necessary for the People to establish that defendant himself made the illegal sale or that he knew the purchasers were under 18 years of age. (People v. Hawk, 156 Misc. 870, 268 N. Y. 678; People v. Werner, 174 N. Y. 132; People v. Davin, 1 A D 2d 811; Commonwealth v. Koczwara, 397 Pa. 575.)
    No appearance for respondent.
   Foster, J.

Defendant was charged with and convicted, after a jury trial in a Court of Special Sessions, of selling an alcoholic beverage to a minor under the age of 18 years, in violation of subdivision 1 of section 65 of the Alcoholic Beverage Control Law. The County Court of Suffolk County reversed the conviction as a matter of law and dismissed the information. In its memorandum the County Court said: “in the absence of an analysis or other competent evidence as to the contents of the drink the People have failed to prove that it was an alcoholic beverage which had been served ’ ’.

Defendant is the owner of a restaurant and bar in Easthampton, New York, known as the Harbor Club. On the occasion in question one Bruce Erickson, who was 16 years of age, and three other youthful companions entered the establishment of the defendant and seated themselves in a booth in the dining room. An employee attended them and took their orders. The minor Erickson ordered a rye and ginger ale, as did two of his companions. The fourth person ordered a “ screwdriver ”, said to be a drink of orange juice and gin. The orders were relayed to the defendant who was tending bar, and a waitress served four drinks on a tray. Erickson took a sip from his glass but did not testify as to what it contained. Only one of the party testified that he recognized the taste of his drink and that it was rye and ginger ale. Erickson paid for all of the drinks in the sum of $2.35. The defendant, who testified in his own behalf, admitted the charge to be correct, 70 cents for the screwdriver ” and 55 cents each for rye and ginger ale.

As the case comes to us, there is presented a question of law as to whether the foregoing evidence presented a prima facie case on the part of the People. We think it did. The evidence that a beverage referred to as rye and ginger ale was ordered, served and paid for was sufficient at least to present a jury question as to whether an alcoholic beverage was served (People v. Marx, 128 App. Div. 828). The courts have noted as a matter of common knowledge that drinks of certain names and descriptions are alcoholic beverages within the meaning of regulatory statutes (McDonnell v. United States, 19 F. 2d 801, 804, cert, denied 275 U. S. 8. 551; People ex rel. Lanci v. O’Reilly, 129 App. Div. 522, 524, affd. 194 N. Y. 592; People v. Cashdollar, 188 App. Div. 9, 10).

While the evidence relied upon by the People is largely circumstantial this does not ipso facto condemn the People’s case. The same test is to be applied as in any criminal case, i.e., whether the evidence “ points logically to defendant’s guilt and excludes, to a moral certainty, every other reasonable hypothesis ” (People v. Harris, 306 N. Y. 345, 351; People v. Taddio, 292 N. Y. 488, 489; People v. Bearden, 290 N. Y. 478, 480). There is no well-considered authority to sustain the determination of the court below to the effect that the crime charged may be proven only by direct evidence as to the nature of the beverage sold.

One other point may be considered. The defendant prepared the drinks but did not actually serve them. Nevertheless, since intent is not a necessary ingredient of this crime, he is responsible for the act of his employees (People v. Hawk, 156 Misc. 870, affd. 268 N. Y. 678; Commonwealth v. Koczwara, 397 Pa. 575; Hershorn v. People, 108 Col. 43; State v. Schull, 66 8. D. 102).

The order of the County Court should be reversed and the case remitted to that court for its determination of the facts in accordance with sections 543-a and 543-b of the Code of Criminal Procedure (People v. Kruger, 302 N. Y. 447, 450; People v. Seigal, 301 N. Y. 43, 45).

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

Order of the County Court reversed and the case remitted to that court for its determination of the facts in accordance with the opinion herein.


author: Fuld, J.

text:
    The People of the State of New York ex rel. Frank Vischi, Appellant, against Walter B. Martin, as Warden of Attica Prison, Respondent.
    Argued. April 18, 1960;
    decided May 26, 1960.

      Charles F. Crimi for appellant.
    I. A commitment to Napanoch is a judgment for purposes of the Code of Criminal Procedure. (Matter of Hogan v. Bohan, 305 N. Y. 110; People ex rel. Mucciolo v. Snyder, 295 N. Y. 866; People ex rel. Miller v. Martin, 1 N Y 2d 406; People v. Cioffi, 1 N Y 2d 70; People v. Shaw, 1 N Y 2d 30; People v. Harcq, 292 N. Y. 321; People
      v. Sullivan, 3 N Y 2d 196.) II. Second felony treatment based upon a previous commitment to Napanoeh for a felony conviction wherein there was a total omission of applicable sections of the Code of Criminal Procedure was improper. (People ex rel. Emanuel v. McMann, 7 N Y 2d 342; People ex rel. La Shombe v. Jackson, 7 N Y 2d 345; Matter of Richetti v. New York State Bd. of Parole, 300 N. Y. 357; Messner v. People, 45 N. Y. 1.) III. The presumption of regularity is inapplicable at this stage of instant ease.

      Louis J. Lefkowitz, Attorney-General (Winifred C. Stanley and Paxton Blair of counsel), for respondent.
    I. Relator’s commitment to Napanoeh in 1935 under section 438 of the Correction Law did not constitute a judgment for purposes of section 480 of the Code of Criminal Procedure. (People ex rel. Carr v. Martin, 286 N. Y. 27; People ex rel. Marcley v. Lawes, 254 N. Y. 249; People ex rel. Spurio v. Foster, 293 N. Y. 820; People v. Love, 305 N. Y. 722; People ex rel. Mucciolo v. Snyder, 269 App. Div. 985, 295 N. Y. 866; People ex rel. Aiello v. Warden of City Prison, 270 App. Div. 1033; People v. Gowasky, 244 N. Y. 451; People v. Eckert, 179 Misc. 181; People ex rel. Meyers v. Lawes, 242 App. Div. 647.) II. Presence of relator in court at the time of his commitment to Napanoeh was not a necessary prerequisite to consideration of his 1935 felony conviction as the basis of his subsequent sentencing as a second offender. (People ex rel. Emanuel v. McMann, 7 N Y 2d 342; People ex rel. La Shombe v. Jackson, 7 N Y 2d 345.) III. A presumption of regularity exists concerning events which occurred 23 years before the habeas corpus proceeding was instituted. (People ex rel. Price v. Hayes, 151 App. Div. 561; People ex rel. Kammerer v. Brophy, 255 App. Div. 821, 280 N. Y. 618; People v. Smyth, 3 N Y 2d 184; People ex rel. Egitto v. Jackson, 7 A D 2d 808, 5 N Y 2d 711, 360 U. S. 906.)
   Fuld, J.

Whether or not a commitment to a state institution for mental defectives, in accordance with section 438 of the Correction Law, constitutes a judgment under the Code of Criminal Procedure is the primary question presented by this appeal.

In February of 1935, shortly after entry of a plea of guilty to the crime of grand larceny and following a proceeding instituted pursuant to article 17 of the Correction Law (§ 430 et seq.), the relator was certified as a ‘‘ mental defective ’’ and committed to Napanoch. It does not appear from the record that he was present in court at the time of his commitment and, indeed, the Wyoming County Court, in dismissing the writ, assumed the contrary. Be that as it may, the relator remained at Napanoch for some time and. then was sent to Woodhourne, another institution for mental defectives. In 1940, about two years after his discharge from Woodbourne, he was convicted in the Chenango County Court upon a charge of burglary and sentenced as a second offender. In his present habeas corpus proceeding, instituted while he was confined in Attica State Prison, he attacks his Napanoch commitment upon two grounds: (1) that it did not constitute a prior conviction for purposes of second felony offender treatment and (2) that it was defective because he was not present at the time of such commitment, as required by section 473 of the Code of Criminal Procedure, and because there was no compliance with the other code provisions which deal with proceedings upon judgment and sentence.

The first point need not detain us. A commitment to Napanoch, it has long been settled, is a conviction within the meaning of section 1941 of the Penal Law. Since only persons convicted of a criminal offense” (Correction Law, § 438) may be sent there, a commitment to that institution is for all purposes a final sentence of incarceration in a penal institution. And the judicial determination of guilt and punishment which such commitment denotes is not excepted from the coverage of the word “ conviction” employed in section 1941. (See People ex rel. Mucciolo v. Snyder, 295 N. Y. 866.) That being so, the relator’s commitment to Napanoch in 1935, following his plea to the felony of grand laceny, formed a proper predicate for his second offender sentence in 1940.

Once it is recognized that a commitment to Napanoch is a '‘ conviction ’ ’, it follows, contrary to the People’s contention, that it is a judgment ” within the sense of the sections with which we are concerned. Thus, we have held that a judgment embraces the adjudication of guilt of the crime charged and the penalty imposed or sentence.” (People v. Sullivan, 3 N Y 2d 196, 198.) And that is precisely what a Napanoch commitment encompasses. This being so, the Nap ano eh commitment is necessarily governed, as is any other judgment, by the statutory provisions which pertain to proceedings following- a verdict or plea of guilt. It requires observance of the same safeguards for the mental defective as imprisonment does for the normal defendant. And, certainly, no one can doubt that a mentally deficient defendant needs every bit as much protection upon proceedings relating to judgment as is accorded to the latter.

The court’s failure to comply with any one of the several code provisions relating to the judgment and its pronouncement (Code Crim. Pro., §§ 471-473, 480, 481) would, as the relator urges, entitle him to remand for resentencing. We have held a defendant entitled to resentence where the court failed to accord him a two-day delay prior to pronouncing judgment pursuant to the requirements of section 472 (cf. People ex rel. La Shombe v. Jackson, 7 N Y 2d 345) or to ask him, as mandated by section 480," why judgment should not be pronounced against him.” (See People ex rel. Emanuel v. McMann, 7 N Y 2d 342; People ex rel. Miller v. Martin, 1 N Y 2d 406 ; see, also, People v. Sullivan, 3 N Y 2d 196, 198, supra.) And, where the court, contrary to the requirement of section 473, resentenced a defendant, in the absence of both himself and his attorney, it was necessary to vacate the resentence and remit the case to the trial court “for resentencing” or “other [appropriate] proceedings (People v. Saperstein, 1 A D 2d 949; 1 A D 2d 402, affd. 2 N Y 2d 210, cert, denied 353 U. S. 946.)

The relator is not, however, entitled — at any rate, at this point—to a complete vacatur of his first conviction. Only after he has been remanded for resentencing will he be in a position to demonstrate, if he can, that judgment should not have been pronounced against him and that the conviction should be set aside. However, until and unless that conviction is vacated, the relator’s second felony offender sentence stands. (See People ex rel. La Shombe v. Jackson, 7 N Y 2d 345, supra; People ex rel. Emanuel v. McMann, 7 N Y 2d 342, supra.) “Although,” this court wrote in the Emanuel case (7 N Y 2d 342, 345, supra), “ upon a proper application directed to the first sentence, relator would be entitled to a remand for resentencing at which time he may be able to establish one of the grounds set forth in section 481 of the Code of Criminal Procedure requiring the court to set aside the conviction, nevertheless, until the prior conviction is vacated, this prior adjudication may properly he considered under section 1941 of the Penal Law in sentencing relator as a second offender”. (Italics in original.)

The order appeal from should be reversed and the matter remitted to the Wyoming County Court for further proceedings not inconsistent with this opinion.

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

Order reversed, etc.


author:
Foster, J.
      Chief Judge Desmond (dissenting).

text:
    The People of the State of New York, Respondent, v. William Drislane, True Name William James Drislane, Appellant.
    Argued April 25, 1960;
    decided May 26, 1960.

      Howard N. Meyer, Paul O’Dwyer, Joan O’Dwyer and Frank Durkan for appellant.
    I. William Drislane was deprived of a fair trial by the prosecutor’s misconduct. (People v. Alvarez, 4 A D 2d 45; People v. Lombard, 4 A D 2d 666; People v. Jackson, 7 N Y 2d 142; People v. De Garmo, 179 N. Y. 130.) II. The court’s instructions to the jury were wholly erroneous and confusing. (People v. Heineman, 211 N. Y. 475; People v. Brown, 5 A D 2d 819; People v. Hetenyi, 277 App. Div. 310, 301 N. Y. 757; People v. Downs, 123 N. Y. 558; People v. Vollmer, 299 N. Y. 347.) III. There was error as well in the exclusion of evidence of threats against defendant, even though such threats 'did not emanate directly from the deceased.

      Edward S. Silver, District Attorney (Aaron Nussbaum of counsel), for respondent.
    I. The court’s instructions were free from error. (Thomas v. People, 67 N. Y. 218; People v. Johnson, 139 N. Y. 358; People v. Heineman, 211 N. Y. 475; People v. Kennedy, 159 N. Y. 346; Shorter v. People, 2 N. Y. 193; People v. McGrath, 47 Hun 325; People v. Kennedy, 67 Hun 652; People v. Brown, 5 AD 2d 819; People v. Downs, 123 N. Y. 558; People v. Carlton, 115 N. Y. 618; Clark v. State, 250 Ala. 255; People v. Rego, 36 Hun 129.) II. Appellant was accorded a fair trial. (Foster v. People, 50 N. Y. 598; People v. Conroy, 97 N. Y. 62.) III. The exclusion of testimony as to irrelevant threats to Drislane was proper. (People v. Loomis, 178 N. Y. 400; People v. Bowen, 170 Mich. 129; Commonwealth v. Campbell, 155 Mass. 537; Davis v. State, 85 Tex. Crim. Rep. 15; Webb v. State, 100 Ala. 47.) IV. The sentence was lawful and just.
   Foster, J.

Defendant appeals from a judgment of conviction for the crime of manslaughter, in the first degree, had in the Kings County Court. The judgment of conviction was affirmed by the Appellate Division, Second Department, with one Justice dissenting. Defendant was sentenced to a term of from 10 to 20 years in State prison.

At the time the alleged crime was committed, defendant was 17 years of age. He was a student in the senior class of a parochial high school, and had previously borne a good reputation. The fatal affray took place in a pool room, and the jury could unquestionably find that defendant inflicted a lethal wound upon the body of another youth with a paring knife, which he had taken from his mother’s kitchen and carried in his pocket. Just before the stabbing there had been an argument over the use of a pool table, and the proof rather clearly shows that the victim and his companions harassed the defendant and interfered with his game. The victim also struck defendant in the face with his fist and knocked him to the floor. On the trial defendant claimed he was dazed when he raised himself from the floor, but he admitted taking the paring knife from his pocket and lunging towards the youth who had assaulted him.

On this appeal defendant refers to several alleged prejudicial incidents in the trial that are either not substantial or present no issue of law for this court to consider because no objection concerning them was made at the trial (Code Grim. Pro., § 420-a). The latter is true as to the alleged misconduct of the District Attorney and the charge of the trial court that the paring knife was a dangerous weapon as a matter of law. Excusable homicide was eliminated as an issue, and properly so we think, because neither the testimony of the defendant nor that of any other witness placed the act within the definition of excusable homicide (Penal Law, § 1054). There remains the query of whether the trial court properly charged the jury as to manslaughter, second degree, and if not whether such failure survives as an issue of law by way of an adequate exception taken on the part of the defendant.

In his main charge the trial court correctly defined manslaughter in the first degree, and then had this to say concerning second degree:

‘‘ Manslaughter in the second degree, insofar as it applies to the facts of this case, is defined as follows:
“ Such homicide is manslaughter in the second degree when committed without a design to effect death, in the heat of passion, but not by a dangerous weapon or by the use of means either cruel or unusual.”

He did not submit the so-called omnibus clause of the statute (Penal Law, § 1052, subd. 3) which provides: By any act, procurement or culpable negligence of any person, which, according to the provision of this article, does not constitute the crime of murder in the first or second degree, nor manslaughter in the first degree.”

That the jury were quite seriously considering finding a verdict of manslaughter, -second degree, and were perplexed about the definition thereof, is evidenced by the fact they returned for further instructions relative thereto. The trial court then flatly charged that manslaughter in the second degree could not be committed with a dangerous weapon. Since he had already charged that the paring knife was a dangerous weapon, and had failed to charge the omnibus clause of the statute, he thereby completely precluded the jury from finding the lessor degree.

We think this was erroneous. In a case somewhat analogous this court held that, where a revolver Avas used by a defendant after a fight, the omnibus clause under section 1052 of the Penal Law should have been charged (People v. Heineman, 211 N. Y. 475). Obviously a revolver is a dangerous weapon; nevertheless it was held that the omnibus clause should have been submitted to the jnry, leaving the latter free to convict of the lesser degree if they were so minded. It is urged here that irrespective of the error defendant failed to preserve it as an issue of law because an adequate exception was not taken to the trial court’s charge.

At the conclusion of the main charge defendant’s counsel couched an exception in this language: “I wish also, your Honor, to take exception to the charging of the possibility of finding the defendant guilty in the lower degree.”

We recognize that this exception was ineptly framed but Ave feel constrained under the circumstances of the case to give to it a broad construction. As thus construed we think it indicated that defendant was dissatisfied with the trial court’s charge as to manslaughter, second degree, and Avas sufficient to put the trial court on notice that more was involved than the definition he had given. It was, therefore, adequate to preserve the issue.

The judgment of conviction should be reversed and a neAV trial directed.

Chief Judge Desmond (dissenting).

I dissent and vote to affirm. Defendant never in any manner raised at the trial the point now urged—that is, as to the failure of the court to charge the paragraph numbered 3 in section 1052 of the Penal Law. Nowhere in the record is any such matter even mentioned. The “ exception” quoted in Judge Foster’s opinion was not sufficient for such a purpose and, indeed, it conveys to me no meaning at all. The absence of an exception to the charge is an absolute and jurisdictional bar to the consideration by us of an alleged error in the charge-in a noncapital criminal case (Code Crim. Pro., § 420-a; People v. Feld, 305 N. Y. 322, 332; cf., as to civil cases, Civ. Prac. Act, § 446; Donohue v. Erie County Sav. Bank, 285 N. Y. 24, 27).

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

Judgment reversed and a new trial ordered.


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

text:
    In the Matter of the Accounting of Ruth Gorden, as Executrix and Trustee of Oliver A. Gorden, Deceased, Appellant. Ann E. Clark, Respondent; Roger B. Gorden, Appellant.
    Argued April 20, 1960;
    decided May 26, 1960.

      F. Walter Bliss for Ruth Gorden, appellant.
    I. Claimant and decedent were living in a meretricious relationship purporting to be husband and wife during the period for which this claim is made, and as a result there can be no recovery by claimant for her services. (Gjurich v. Fieg, 164 Cal. 429; Vincent v. Moriarty, 31 App. Div. 484; Cropsey v. Sweeney, 27 Barb. 310; Matter of Napoli, 282 App. Div. 814.) II. The Appellate Division based its determination of the facts upon erroneous considerations. (Cole v. Sweet, 187 N. Y. 488.) III. This claim was illegal on its face and brought in violation of article 2-A of the Civil Practice Act.

      James F. Ryan for Roger B. Gorden, appellant.
    I. The Appellate Division erred in reversing the decree of the Surrogate by finding (a) that there was no direct testimony of meretricious relationship between claimant and decedent; (b) by basing its decision on the authority of Matter of Napoli (282 App. Div. 814); (c) in drawing an unfavorable inference from the fact that claimant was not cross-examined; (d) in drawing an unfavorable inference that the executrix did not present proof of meretricious relationship after claimant had rested, and (e) by awarding claimant the sum of $9,000 without testimony or evidence upon which an award could be based. (Matter of Napoli, 282 App. Div. 814; Murray v. Narwood, 192 N. Y. 172.) II. Claimant failed to prove a legal and enforcible contract. (Rhodes v. Stone, 63 Hun 624; Frankenberger v. Schneller, 258 N. Y. 270; Matter of Stewart, 21 Misc. 412; Rose v. Truax, 21 Barb. 361; Metz v. Woodward-Brown Realty Co., 182 App. Div. 60; Angresani v. Tozzi, 217 App. Div. 642, 245 N. Y. 558; McDonald v. Fleming, 12 B. Mon. [Ky.] 285; Manson v. Curtis, 223 N. Y. 313.)

      Leo Salon and John J. Madden for respondent.
    I. Claimant-respondent for more than seven years performed extensive work, labor and services at the special instance and request of decedent (and ultimately his estate) under an express contract (implied in fact) that she would be paid for her labors. Moreover claimant-respondent is entitled to recover under the theories of contract implied in law, quantum meruit, and unjust enrichment. (Matter of Hughes, 229 App. Div. 614; Matter of Taylor, 206 Misc. 69; Matter of Mason, 134 Misc. 902; Holsapple v. Rome W. & O. R. R. Co., 86 N. Y. 275; Cutler-Hammer v. Troy, 283 App. Div. 123; Vincent v. Moriarty, 31 App. Div. 484; Angresani v. Tozzi, 217 App. Div. 642, 245 N. Y. 558; Rhodes v. Stone, 63 Hun 624, 17 N. Y. S. 561; People v. Hayes, 70 Hun 111; Matter of Napoli, 282 App. Div. 814; Emmerson v. Botkin, 26 Okla. 718; Lytle v. Newell, 24 Ky. Law. Rep. 188; Anderson v. Petridge, 45 Wn. [2d] 299; Frankenberger v. Schneller, 258 N. Y. 270; Matter of Stewart, 21 Misc. 412; Rose v. Truax, 21 Barb. 361; Metz v. Woodward-Brown Realty Co., 182 App. Div. 60; Manson v. Curtis, 223 N. Y. 313; Burger v. Neumann, 300 N. Y. 495; Brown v. Tuttle, 80 Me. 162; Zytka v. Dimochowski, 302 Mass. 63.) II. The contract as alleged in the pleadings and proved at the trial was valid, legal and enforcible. The defense of illegality must be affirmatively pleaded by the executrix appellant who must bear the burden of proof on that issue. The executrix appellant neither raised the issue of illegality by the pleadings nor proved illegality at the trial. (United States Print. & Lithograph Co. v. Powers, 171 App. Div. 406; Dodge v. Weill, 158 N. Y. 346; Burger v. Neumann, 300 N. Y. 495; Matter of Fee, 151 Misc. 410; Conforti Constr. Co. v. Neek Realty Corp., 125 Misc. 876; Murray v. Narwood, 192 N. Y. 172.) III. The contract for work, labor and services as proved at the trial was valid, legal and enforcible. (Lorillard v. Clyde, 86 N. Y. 384; Friedman v. State of New York, 242 App. Div. 314, 268 N. Y. 530; Richards v. Wiener Co.,
      145 App. Div. 353; Sheridan v. Weber, 252 App. Div. 398; Day v. Mills, 133 Misc. 220; Matter of Hellwig, 178 Misc. 510.) IV. The agreement upon which the claim is based is not illegal on the grounds of public policy. The laws of contract, equity and justice require that the agreement as alleged and proved at the trial be enforced.
   Van Voorhis, J.

This appeal concerns a claim of Ann E. Clark, also known as Mrs. Oliver Gorden, for work, labor and services against the Oliver Gorden estate. She claims to have been employed for more than seven years on the basis of a weekly Wage which was never paid. The amount of the claim is $18,100. It was rejected by the Surrogate. The Appellate Division directed a recovery of $9,000, allowing what it thought the services were worth after deducting the value of board and lodging.

The board and lodging assume greater proportions than usual in the decision of this issue, since during the period of claimants employment she occupied the same room and ate at the same table with decedent, and was known in the community as his wife. After decedent had been divorced by his wife, he and claimant moved from Brooklyn, New York, to West Fulton, a hamlet located in the hills of Schoharie County, where decedent acquired in his own name a small country tavern or inn. From September 25, 1947 until his death on December 20, 1954, they operated this small hostelry without any employees, nor is it disputed that she joined him in performing all of the work connected with the operation of this establishment and their own home life. There is no dispute about any of the testimony.

In her bill of particulars in response to a demand covering the nature of her services and the basis on which they were rendered, claimant stated ‘‘ that the said Oliver A. Gorden, promised and agreed to compensate claimant for the fair and reasonable value of the services rendered, and further agreed to marry claimant, to grant to claimant the same rights and privileges which claimant would have as the wife of said Oliver A. Gorden, and further agreed to make and execute a Will to compensate and care for claimant. Said contract was oral.”

If during the lifetime of Mr. Gorden claimant was not accorded the rights and privileges which she would have had as his wife, she cannot get them by filing a claim against his estate after he is dead. An oral agreement to execute a will in her favor is void under the Statute of Frauds (Burns v. McCormick, 233 N. Y. 230; Rubin v. Irving Trust Co., 305 N. Y. 288). The Surrogate considered that her claim against the estate is barred by a meretricious relationship. The Appellate Division found that the services to be compensated were severable from any personal relationship between them.

A meretricious relationship would not prevent recovery for services rendered in maintaining the tavern or the household if there were an express agreement that she was to be paid — either a stipulated wage or what the services were worth —provided that she was not being paid to be his mistress (Rhodes v. Stone, 63 Hun 624, opinion in 17 N. Y. S. 561). But, as was stated in the opinion in that case (published at 17 N. Y. S. 561, 562): ‘ ‘ The respondent cannot rely upon an implied agreement to pay her for her labor ” where she has been living with a man as husband and wife. The court there said that ‘ The relations of the parties did not necessarily forbid an express contract between them that the intestate would pay respondent for her labor ’ ’, for which she was allowed to recover where there was ‘ ‘ no suggestion in the evidence that the illicit relations were to form any part of the consideration of the contract.” Recovery was allowed in that case for the reason that “ There was sufficient evidence of such an agreement to sustain the verdict of the jury.”

Claimant’s difficulty on this appeal is that, whether married or not, they lived and operated this little tavern in the same manner in which they would have done if they had been formally married. If she had been working as an employee instead of a cle facto wife, she would not have labored from 8 o’clock in the morning until after midnight without demanding pay or without being paid. The records of the inn do not show payments of wages to her, nor do the reports to the State Liquor Authority indicate that she was an employee, although she kept the books and did the paper work, for the establishment. No entries were made of wages paid, accrued or owing. Claimant was not without experience in business affairs.

Witnesses were called to testify to alleged admissions by decedent that claimant was working for him as an employee. It may well be that he stated in his lifetime that he would have had to close the tavern without her or that he would see that she was taken care of. One witness testified that he did say that “ he would see that she got paid for it.” A lifelong woman friend of claimant’s testified, to having told decedent that she must be making $100 a week, to which the friend said he replied: “ No, she is not but she will be paid $50 a week and later I expect to raise it when business picks up.” Whether claimant worked on a pecuniary basis had to be determined under the rule that clear and convincing proof is required to support claims filed against a decedent’s estate (Matter of Burt, 255 App. Div. 1030; Hyman v. Dworsky, 239 App. Div. 413).

Although the Surrogate regarded their meretricious relationship as being a bar to recovery, which is not a necessary consequence, the Surrogate found on the facts that “they maintained the relationship of husband and wife both in their private life and in the operation of the bar and grill, the claimant performing the services which would normally be performed by a wife under such circumstances.” That finding of fact states the truth insofar as we are able to discern it from the record, rather than that she was working for hire as found by the Appellate Division. The Surrogate correctly observed that she' devoted a number of years to the decedent but that ‘ ‘ Any rewards, material or otherwise, that she may have received during this period are, of course, unknown and it may well be such rewards fall short of her expectations.” Under the facts found there is no basis for a claim against the estate.

The order appealed from should be reversed and the decree of the Surrogate’s Court reinstated, with costs to the appellants payable out of the estate.

Chief Judge Desmond (dissenting).

I vote to affirm. The Appellate Division had, under section 309 of the Surrogate’s Court Act, the same power as the Surrogate to decide these questions of fact. The Surrogate had dismissed the claim in the erroneous belief that the meretricious relationship between claimant and decedent forbade recovery as matter of law. The Appellate Division, properly rejecting this mistaken view of the law (Rhodes v. Stone, 63 Hun 424), dealt with the questions of fact as to rendition of services, value of services and agreement to pay for them. The character and extent of claimant’s work in the operation of this inn for many years were proven beyond, dispute. There was satisfactory evidence of promises by decedent to pay for those services, and this testimony given by four different witnesses was not incredible or even suspect. The allowance made by the Appellate Division was modest in amount. I see no reason why it should be set aside.

Judges Dye, Froessel and Burke concur with Judge Van Voorhis; Chief Judge Desmond dissents in an opinion in which Judge Fuld concurs; Judge Foster taking no part.

Order reversed, etc.


author: Chief Judge Desmond. Fuld, J. (dissenting). Van Voorhis, J. (concurring in part).

text:
    In the Matter of the Claim of William Albertson, Respondent. Isador Lubin, as Industrial Commissioner, Appellant. In the Matter of Communist Party, U. S. A., et al., Respondents. Isador Lubin, as Industrial Commissioner, Appellant.
    Argued March 28, 1960;
    decided May 26, 1960.

      Louis J. Lefkowitz, Attorney-General (Julius L. Sackman, Paxton Blair and Samuel Stern of counsel), for appellant.
    I. The Unemployment Insurance Appeal Board properly sustained the determination of the Industrial Commissioner suspending the registrations of the Communist Party, U. S. A., and the Communist Party of the State of New York, as employers under the New York Unemployment Insurance Law. II. The Industrial Commissioner has the power to suspend the registration of an employer under the Unemployment Insurance Law. (Matter of Electrolux Corp., 286 N. Y. 390.) III. The lndustrial Commissioner was legally justified in suspending the registrations of the Communist Party, U, S. A., and the Communist Party of the State of New York, as employers within the meaning of the Unemployment Insurance Law. The suspension was justified by reason of the fact that both of the employers constitute a criminal conspiracy, the principal object of which is the overthrow of the Government of the United States and the Government of the State of New York by force and violence. (Matter of McKay, 71 F. Supp. 397; National Maritime Union of America v. Herzog, 78 F. Supp. 146, 334 U. S. 854; Appeal of Albert, 372 Pa. St. 13; Weinstock v. Ladisky, 197 Misc. 859; Matter of Daniman v. Board of Educ. of City of N. Y., 306 N. Y. 532; Matter of Lerner v. Casey, 2 N Y 2d 355; Carlson v. Landon, 187 F. 2d 991, 342 U. S. 524; Martinez v. Neelly, 197 F. 2d 462, 344 U. S. 916; Communications Assn. v. Douds, 339 U. S. 382; Dennis v. United States, 341 U. S. 494.) IV. The suspension was justified by reason of the fact that any rights, privileges and immunities which the employers may have had, including the right to be classified as an employer within the meaning of the Unemployment Insurance Law, have been statutorily terminated. (United States v. Peace Information Center, 97 F. Supp. 255; Farmer v. Rountree, 149 F. Supp. 327, 252 F. 2d 490, 357 U. S. 906; Teget v. Lambach, 226 Iowa 1346; Oil Workers Int. Union v. Elliott, 73 F. Supp. 942; Dunne v. United States, 138 F. 2d 137, 320 U. S. 790; Pennsylvania v. Nelson, 377 Pa. 58, 350 U. S. 497; Ohio v. Akron Park Dist., 281 U. S. 74; Highland Farms Dairy v. Agnew, 300 U. S. 608; Communist Party v. Control Bd., 223 F. 2d 531, 351 U. S. 115; Salwen v. Rees, 16 N. J. 216.) V. The employers-respondents have no privileges and immunities which they can constitutionally assert. (Hague v. C. I. O., 307 U. S. 496.) VT. The payment of a tax upon a business prohibited by statute is no justification for doing the forbidden act. (Rutkin v. United States, 343 U. S. 130; Angelus Bldg. & Inv. Co. v. Commissioner of Internal Revenue, 57 F. 2d 130, 286 U. S. 562; Wainer v. United States, 299 U. S. 92; State ex rel. Replogle v. Joyland Club, 124 Mont. 122; State v. Israel, 124 Mont. 152; Commonwealth v. Smith, 193 Va. 1; Stein v. State Tax Comm., 266 Ky. 469; Lueke v. Mescall, 272 Ky. 770.) VII. The failure of the Federal Government to act upon the provisions of the Communist Control Act of 1954 does not militate against its efficacy. (Salwen v. Rees, 16 N. J. 216.) VIII. The criminal character of the employers is based on criminality which is malum in se, rather than merely malum prohibitum, and, therefore, no benefits can accrue to its employees under the Unemployment Insurance Law even with respect to employment which antedated the notice of termination. (Albertson v. Millard, 106 F. Supp. 635, 345 U. S. 242; People v. Zinke, 170 Misc. 332; Matter of Clarke v. Town of Russia, 283 N. T. 272; Herbold v. Neff, 200 App. Div. 244; Carmichael v. Southern Coal Co., 301 U. S. 495; Steward Mach. Co. v. Davis, 301 U. S. 548; Matter of Cassaretakis, 289 N. Y. 119, 319 U. S 306.) IX. The employee is not entitled to any benefits under the Unemployment Insurance Law since he has failed to show that he was employed in covered employment for the minimum number of weeks in the base year. (Matter of Miller v. Kling,
      291 N. Y. 65; Matter of Morton, 284 N. Y. 167 Matter of Waterman, 285 App. Div. 1106, 285 App. Div. 1196; Matter of Stork Restaurant v. Boland, 282 N. Y. 256; Matter of Electrolux Corp., 288 N. Y. 440; Matter of Friedel v. Board of Regents of Univ. of State of N. Y., 296 N. Y. 347; Matter of Humphrey v. State Ins. Fund, 298 N. Y. 327; Matter of Donahue v. Fletcher, 299 N. Y. 227; Matter of Tompkins v. Board of Regents of Univ. of State of N. Y., 299 N. Y. 469; Matter of Burke v. Bromberger, 300 N. Y. 248.) X. The employee was not an employee within the meaning of the Unemployment Insurance Law insofar as the Communist Parties and the Civil Rights Congress were concerned. XI. The fact that the employers-respondents and the Civil Rights Congress were, after the effective date of the Communist Control Act, actually contributing employers does not establish the employee’s right to benefits if there was no right under the law to accept such contributions. (Lanolin Plus Cosmetics v. Marzall, 196 F. 2d 591, 344 U. S. 823; People v. System Props., 281 App. Div. 433, 2 N Y 2d 330; Ranke v. State of New York, 206 Misc. 596, 285 App. Div. 1113; Bates Chevrolet Corp. v. State of New York, 192 Misc. 151; Matter of Eisenberg, 184 Misc. 387; Matter of Longo v. Eilers, 196 Misc. 909; City of New York v. Wilson & Co., 278 N. Y. 86; Brill v. Wagner, 5 Misc 2d 768; People ex rel. McGoldrick v. Riggs, 200 Misc. 313; Williams Oil Co. v. State of New York, 198 Misc. 907; People ex rel. Depew v. State Bd. of Parole, 189 Misc. 321; Matter of S. B. Garage Corp. v. Murdock, 185 Misc. 55.)

      Stephen C. Vladeck, Sylvan H. Elias and Judith P. Vladeck for William Albertson, respondent.
    I. The Appellate Division properly found that claimant-respondent met all qualifications under the law for entitlement to unemployment insurance benefits. The claimant met all of the statutory requirements for entitlement to benefits. (Matter of Batter, 257 App. Div. 546.) II. The Appellate Division properly found that the statutes relied on by the Industrial Commissioner did not render the claimant’s employment illegal. III. The Industrial Commissioner’s argument that the employment contract between claimant and the employers was void is erroneous as a matter of law. (Matter of Clarke v. Town of Russia, 283 N. Y. 272; Herbold v. Neff, 200 App. Div. 244; Sturm v. Truby, 245 App. Div. 357; Rosasco Creameries v. Cohen, 276 N. Y. 274.) IV. In any ease, there has been no showing that claimant participated in any illegal activity or that his employment was other than lawful. (Matter of Cassaretakis, 289 N. Y. 119, 319 U. S. 306; Yates v. United States, 354 U. S. 298; Nowak v. United States, 356 U. S. 660; Schware v. Board of Bar Examiners, 253 U. S. 232; Schneiderman v. United States, 320 U. S. 118; Wieman v. Updegraff, 344 U. S. 183.)

      John J. Abt for Communist Party, U. S. A., and another, respondents.
    I. Appellant’s contention that the registrations of the employers-respondents should be suspended because they ‘ ‘ constitute a criminal conspiracy ’ ’ has no foundation in the evidence and is fallacious as a matter of law. (Schware v. Board of Bar Examiners, 353 U. S. 232; Yates v. United States, 354 U. S. 298; Anti-Fascist Committee v. McGrath, 341 U. S. 123; Morgan v. United States, 304 U. S. 1; Thompson v. Wallin, 301 N. Y. 476; Communist Party v. Control Bd., 254 F. 2d 314, 351 U. S. 115.) II. 'The Appellate Division correctly held that the Communist Control Act furnishes no justification for suspending the registrations of the employers-respondents. III. The obligation to pay unemployment insurance taxes is not a right, privilege or immunity within the meaning of the act. IV. The act does not incapacitate the national and State parties from having persons in their employment. V. Appellant’s interpretation of the act is contrary to that of the executive departments of the Federal Government, the Congress and the State Legislature. (Commttnist Party v. Control Bd., 254 F. 2d 314, 351 U. S. 115; Copper Queen Mining Co. v. Arizona Bd., 206 U. S. 474; Massachusetts Mut. Life Ins. Co. v. United States, 288 U. S. 269; Johnson v. Manhattan Ry. Co., 289 U. S. 479; Bullock v. Cooley, 225 N. Y. 566; Matter of Kolb v. Holling, 285 N. Y. 104; People ex rel. Werner v. Prendergast, 206 N. Y. 405.) VI. The act contemplates that the Communist Party will continue to have and to act through officers, agents and employees. VII. Section 3 of the act does not terminate rights which are granted by State law. (United States v. Rumely, 345 U. S. 41; United States v. Witkovich, 353 U. S. 194; United States v. Gambling Devices, 346 U. S. 441.) VIII. The act does not terminate the collective right of members of the Communist Party to enter into contracts of employment. IX. The liability of the employers-respondents to taxation under the Federal Unemployment Tax Act is conclusive of their status as contributing employers under the Unemployment Insurance Law. X. The Communist Control Act, on its face and as sought to be applied by appellant, violates the Constitution of the United States. (Pennsylvania v. Nelson, 350 U. S. 497; Communist Party v. Control Bd., 351 U. S. 115.) XI. The aot is a bill of attainder. (Cummings v. Missouri, 71 U. S. 277; United States v. Lovett, 328 U. S, 303; Communications Assn. v. Douds, 339 U. S. 382.) XII, The act is an ex post facto law, XIII. The act violates the due process prohibition against fiat legislation, (West Coast Hotel Co. v. Parrish, 300 U. S. 379; Miller v. Wilson, 236 U. S. 373; Prudential Ins, Co. v. Cheek, 259 U. S, 530; Lochner v. New York, 198 U. S. 45.) XIV, The act violates the First and Tenth Amendments. (De Jonge v. Oregon, 299 U. S. 353; Herndon v. Lowry, 301 U, S, 242,) XV. The action of appellant in suspending the registrations of the employers-respondents denied them and their employees due process of law and the equal protection of the laws in violation of the New York and United States Constitutions. (Konigsberg y. State Bar, 353 U. S, 252; Wieman v. Updegraff, 344 U. S. 183; Adler v. Board of Educ,, 342 U. S. 485; Nowak v. United States, 356 U, S, 660; Schware v. Board of Bar Examiners, 353 U. S. 232.)
   Chief Judge Desmond.

Two separate but related questions arise in this consolidated proceeding. We are first to decide whether, on the theory that his employment by the Communist Parties (N. Y. and U. S. A.) was not “ covered employment ”, respondent Albertson is ineligible for unemployment insurance benefits. Second, we must determine whether the Industrial Commissioner was legally justified in suspending the registration of the Communist Parties themselves as employers ” within the meaning of the Unemployment Insurance Law.

We agree with the Appellate Division that Albertson is not to be denied an unemployment insurance award solely because part of his base period of employment was with the Communist organizations. Nothing was proven beyond that bare fact. There is no statute or other precedent disqualifying him from coverage. His work with the Communist organizations was not shown to have been criminal, conspiratorial or traitorous. Despite the equivocal status and illegal purposes of his employer, his own contract of hiring (unlike that in Matter of Clarke v. Town of Russia, 283 N. Y. 272) was not so completely illegal as to prohibit unemployment insurance coverage. It would be unreasonably punitive to hold that, because (the employer who paid unemployment taxes for him was engaged in an anti-American conspiracy, Albertson must lose his insurance. Since the striking of the parties from the list was as of March 26, 1957, there is no inconsistency in protecting the insurance rights of Albertson whose employment ended before that date.

As to the alleged rights of Communist Parties to recognition and listing, however, we disagree with the Appellate Division, The Industrial Commissioner in performing his statutory duty (Labor Law, § 571) of computing and collecting these taxes had necessarily to decide who were “ employers ” under the act (Matter of Electrolux Corp., 286 N. Y. 390, 397). In so doing, he could not ignore the Federal Communist Control Act (U. ¡3. Code, tit. 50, § 842) which declared that the Communist Party is "not entitled to any of the rights, privileges, and immunities attendant upon legal bodies created under the jurisdiction of the laws of the United States or any political subdivision thereof; and whatever rights, privileges and immunities which have heretofore been granted to said party or any subsidiary organization by reason of the laws of the United States or any political subdivision thereof are terminated”. We take that plain declaration and its absolute language to mean what it says, although we find no decisions construing it in this connection. It necessarily means that the artificial body or entity calling itself the Communist Party is to be deprived of all the ‘ rights, privileges, and immunities ” that other such entities have. The Appellate Division dealt with this statutory language by saying that the requirement of paying an unemployment insurance tax is not an “immunity or right” where the employer has been allowed by the State to exist, has in fact been allowed the exercise of other privileges and where no reason is shown why it should not pay this tax. Of course, paying a tax is not really claiming an “immunity” or “right” but with the payment of this particular tax goes a status and enrollment as an employer. Whatever value that status may have is being sought and claimed by the Communist Parties in this proceeding.

The State offcers of New York, reading literally the Federal statute, have deprived the Communist Parties of their former places on the State’s offcial roll of employers. The Federal Government, although charged with the enforcement of its own Communist Control Act, is, we are told, still collecting unemployment insurance taxes from the Communist Parties. What the reason is for this position we do not know and there is not enough in the record to prove any binding Federal administrative construction of the Federal act. We know that the Communist Parties are allowed to use the mails, list themselves in the telephone books, hold public meetings and write letters to magazines (see Harper’s for May, 1960, pp. 6-8, communication signed by the party’s “National Educational Secretary”). But we are not here determining whether the reports of the demise of these organizations are exaggerated. The situation in our court is that these Communist Parties are demanding that they be restored to this State’s list of employers. They come as unincorporated groups claiming rights or privileges but all rights of unincorporated associations are created by and dependent upon ithe State. The Appellate Division recognized in its opinion that the State might by appropriate steps prevent the Communist Parties ‘ ‘ from engaging in any activity or existence ”. We think that the State of New York has already done so. The Attorney-General, its highest law oEcer, argues to us on this appeal that the unemployment insurance oEcers acted validly in denying further recognition to the Communist Parties.

We accept none of the arguments that this Federal Communist Control Act is unconstitutional. We do not think that it is a bill of attainder or ex post facto legislation. We see no denial of due process in the deprivation of these organizations of their status without a hearing. Section 841 of title 50 of the United States Code contains a Congressional finding that the Communist Party is not really a political party but ‘ ‘ in fact an instrumentality of a conspiracy to overthrow the Government of the United States ”, that it is dedicated “ to the proposition that the present constitutional Government of the United States ultimately must be brought to ruin by any available means, including a resort to force and violence ”, and that as an agency of a hostile foreign power it is “a clear present and continuing danger to the security of the United States,” Similar pronouncementis are found in a number of decisions of this court and of the United States Supreme Court (see Dennis v. United States, 341 U. S. 494, 547; Matter of Lerner v. Casey, 2 N Y 2d 355, 372, affd. 357 U. S. 468). These are not mere fiats or rhetorical flourishes but recognitions by courts and Congress of facts that are so well established and known that recognition of them without further proof is a right and duty (see East New York Sav. Bank v. Hahn, 293 N. Y. 622, 627, affd. 326 U. S. 230).

The administrative determination suspended the registration of the Communist Parties as of March 26, 1957 and the State has not accepted any reports or payment of contributions since that date. Since Albertson’s employment was earlier than that date there is no difficulty as to him. If there are or will be unemployment insurance problems as to other employees of these Communist Parties, decision on those problems will have to wait until the claims, if any, are presented in the usual way. Many corporations and bodies are considered not to be employers under the act (see Labor Law, § 560, subd. 4) and presumably their employees are aware of it.

The order of the Appellate Division should be modified by reversing so much thereof as sets aside the suspension of the registration of the employers-respondents and the decision of the Unemployment Insurance Appeal Board in this connection reinstated, otherwise the Appellate Division order should be affirmed, with costs to claimant-respondent against the Industrial Commissioner.

Fuld, J. (dissenting).

This is a curious case; a taxpayer, the Communist Party, resists exemption from taxes, while the State, through its Industrial Commissioner, insists on thrusting such an exemption upon it.

The unemployment insurance system, a joint federal-state undertaking, provides benefits for persons involuntarily unemployed to be financed by an excise tax on employers (see U. S. Code, tit. 26, § 3301 et seq.; Labor Law, art. 18). Having lost his job with the Parkside Delicatessen, following earlier employment with the Communist Party, U. S. A., the respondent Albertson applied for such benefits under this State’s Unemployment Insurance Law (Labor Law, art. 18). Although the Party had paid to the State all unemployment insurance contributions required to be paid and had for many years made, and is currently making, tax payments to the United States Bureau of Internal Revenue under the Federal Unemployment Tax Act, the Industrial Commissioner decided that it was not subject to the tax and that, on this account alone, Albertson was not entitled to unemployment benefits.

This result is sought to be supported by reference to the Federal Communist Control Act of 1954 and by contentions about the nature of the Communist Party and the constitutional powers of the Federal and State Governments to deal with it. But, under settled and salutary principles of adjudication, courts avoid decision on such large-matters — here, not free of difficulty (see Auerbach, The Communist Control Act of 1954, 23 U. of Chi. L. Rev. 173, 183 et seq,; see, also, Remarks of Representative E. Celler, during House debate, 100 Cong. Rec. 14643)—unless they are necessary for a disposition of the issues presented. There is no such necessity in this case; decision of the issues now before us depends solely on the answer to one simple question of statutory construction. Is the Communist Party an “ employer ” subject to unemployment insurance taxes 1 If it is, the Appellate Division was correct, and its order reversing the Industrial Commissioner’s determination must be affirmed.

The New York Unemployment Insurance Law, having its origin in the Federal Social Security Act of 1935 (U. S. Code, tit. 42, § 301 et seq.), defines an “ employer”, in exceedingly broad terms, as “any person, partnership, firm, association, public or private ” (Labor Law, § 512). Absent an overriding-legislative proscription, it is admitted, the Communist Party is an employer within the meaning of our statute, and is liable to pay taxes under the provisions of section 560. But, says the Industrial Commissioner, since 1954, the Federal Government, by enactment of the Communist Control Act (U, S. Code, tit. 50, § 841 et seq.), has prevented the Communist Party from being an employer with the consequence that it is not subject to unemployment insurance taxes and its employees are not entitled to any benefits under our Unemployment Insurance Law.

This contention is unreasonable. In the first place, it is significant that the federal authorities, admittedly aware of the Industrial Commissioner’s position, have taken one diametrically opposed and continue to recognize the Communist Party as an employer subject to the Federal act. And, although determination of the persons who fall within the class of employers subject to the state tax may not be a matter of federal law, there can be no doubt of the desirability, indeed, of the “ obvious necessity of harmonizing where possible our state [unemployment insurance] law with the federal acts ’ ’. (Pioneer Potato Co. v. Division of Employment Security, 17 N. J. 543, 549, per Brennan, J.) In the second place, the Communist Control Act, relied upon by the Commissioner, may not, in any event, be read to support the determination which he made in this case.

That the Unemployment Insurance Law of New York, as well as of the other states, and the Federal Unemployment Tax Act (U. S. Code, tit. 26, §§ 3301-3308) make up a “coordinated scheme” (Buckstaff Co. v. McKinley, 308 U. S. 358, 364) is obvious from the merest perusal of the statutes concerned (see, especially, U. S. Code, tit. 26, §§ 3302, 3306; U. S. Code, tit. 42, § 503; Labor Law, §-§ 530, 532, 536, 560, subd. 1, par. [c] ) and has been the subject of judicial observation not only in this court, but in numerous other courts. (See, e.g., Matter of Lazarus [Corsi], 294 N. Y. 613, 618; Buckstaff Co. v. McKinley, 308 U. S. 358, 363-364, supra; Lines v. State of California, 242 F. 2d 201, 203, cert, denied 355 U. S. 857; Scripps Mem. Hosp. v. California Employment Comm., 24 Cal. 2d 669, 677; Arnold Coll. v. Danaher, 131 Conn. 503, 507; Stromberg Hatchery v. Iowa Employment Security Comm., 239 Iowa 1047, 1051; Pioneer Potato Co. v. Division of Employment Security, 17 N. J. 543, 547, supra.) Thus, we are told on the highest authority that “ it would seem to be a fair presumption that the purpose of Congress was to have the state law as closely coterminous as possible with its own. To the extent that it was not, the hopes for a coordinated and integrated dual system would not materialize.” (Buckstaff Co. v. McKinley, 308 U. S. 358, 364, supra.) Perhaps, the strongest indication that “ The administration of the branch of federal security which deals with [unemployment compensation] and the administration of the state laws [dealing with ,the same subject] constitute a single system” (Arnold Coll. v. Danaher, 131 Conn. 503, 507, supra,), is provided by the fact that our Legislature itself prescribed, as one of the conditions of liability for contributions under our law, that an employer is ‘" liable for tax under the provisions of the federal unemployment tax act ” (Labor Law, § 560, subd. 1, par. [c]).

Notwithstanding these overwhelming indications that the state and federal unemployment compensation provisions should be administered, insofar as possible, as one act, the Industrial Commissioner has refused so to consider them. He admits that the federal authorities, despite the statutes on which he relies and despite their awareness of his position, continue to deal with the employer respondents herein as " liable for tax under the provisions of the federal unemployment tax ”, but he insists that his judgment should not be controlled by their determination. There is no warrant for this position in the statute which he administers. The necessity to achieve a coordinated and integrated dual system ” (Buckstaff Co. v. McKinley, 308 U. S. 358, 364, supra) represents so strong a state and federal legislative policy that the Industrial Commissioner should have concluded that, as long as an employer is treated by the federal authorities as subject to the federal unemployment tax, it is liable for contributions under our Unemployment Insurance Law, unless, of course, our own statute embodies an express provision to the contrary. (See Matter of Lazarus [Corsi], 294 N. Y. 613, 618, supra; see, also, cases cited, supra, p. 87; cf. Matter of Marx v. Bragalini, 6 N Y 2d 322, 333; Matter of Weiden, 263 N. Y. 107, 110.) As was said by the Connecticut Supreme Court, " Unless the provisions of the state [unemployment insurance] statute clearly differ from those of the federal act, it must be assumed that the legislature intended that they be interpreted alike, and this is particularly true with reference to those which determine the persons who are obligated to make contributions.” (Arnold Coll. v. Danaher, 131 Conn. 503, 507, supra.) Especially is this so where the only basis for the Commissioner’s position is his interpretation of a federal statute.

In short, a determination by the federal authorities that, despite the Federal Communist Control Act, the Communist Party is an employer subject to registration and tax under the Federal Unemployment Tax Act (U. S. Code, tit. 26, § 3301 el seq.) requires a like decision by the Industrial Commissioner. Even were this not so, however, I would, nevertheless, regard the Commissioner’s ruling as unreasonable since it rests on a mistaken reading of the Communist Control Act. Insofar as relevant that statute (U. S. Code, tit. 50) recites in section 842:

“ The Communist Party of the United States * * * [is] not entitled to any of the rights, privileges, and immunities attendant upon legal bodies created under the jurisdiction of the laws of the United States or any political subdivision thereof; and whatever rights, privileges, and immunities which have heretofore been granted to said party * * * are hereby terminated ”.

Whatever else this legislation may mean, it may not be taken to affect the “liability [of] any employer * * * for contributions ” under our Unemployment Insurance Law (Labor Law (art. 18, § 560). This, it ¡seems obvious, necessarily follows from the fact that, whereas the act cuts off " rights, privileges and immunities ”, the status of an employer under the Unemployment Insurance Law involves, and is expressly denominated, a “ liability ” (see, e.g., Labor Law, §§ 560, 561, 562, 570, 572, 579), a duty to pay an “ excise tax.” (Matter of Cassaretakis, 289 N. T. 119, 127, affd. 319 U. S. 306; see, also, Matter of Burke, 267 App. Div. 127, 130.) Certainly, a deprivation of " immunities ’ ’ may not be read to confer an immunity from taxation and, just as surely, a loss of “ rights ” and “ privileges ” can hardly be said to grant a freedom from the" obligation to pay a tax. Taxation is an intensely practical business, and the courts do not deal in riddles in interpreting tax statutes.

There are surely better ways of dealing with the problems posed by communism and the Communist Party than by forced and unreal construction of statutes designed to serve entirely different purposes. The plain fact is that our Unemployment Insurance Law was enacted to benefit the ‘ ‘ unemployed worker ’ ’ (Labor Law, § 501), not the employer, and it is the latter who is burdened with a tax in order to fulfill the purposes of the statute. The imposition of such a burden upon the Communist Party as employer cannot possibly be deemed the sort of ‘' right ” or “ privilege ’ ’ denied to the Party by the Communist Control Act. If Congress had been intent upon depriving the Communist Party of its ability to enter into contracts or hire employees, it could easily and unmistakably have ■ so provided. And, if our Legislature desired to prevent employees of the Communist Party from receiving unemployment insurance benefits, it could, I assume, have done so, but, in the absence of such legislation, the Industrial Commissioner may not bring about this result simply by coining a new legal concept, a privilege new to our law, ‘ ‘ the privilege to pay taxes ’ ’.

This disposes of the proceeding brought by the respondent employer; the Communist Party is subject to registration and taxation as an employer under the Unemployment Insurance Law. And, that being so, it follows that the Appellate Division was also correct in holding, in the proceeding instituted by the respondent Albertson, that he had met all qualifications under the law and was entitled to unemployment benefits.

I would affirm the order appealed from in all respects.

Van Voorhis, J. (concurring in part).

If the Communist Party in the United States is ‘ ‘ the agency of a hostile foreign power ’ ’ and ‘ ‘ an instrumentality of a conspiracy to overthrow the Government of the United States ” as the Congress of the United States has determined (U. S. Code, tit. 50, § 841), on. account of which it has been “ outlawed ” and declared not to be “ entitled to any of the rights, privileges, and immunities attendant upon legal bodies created under the jurisdiction of the laws of the United States or any political subdivision thereof” (id., § 842), then if cannot be recognized as a legitimate employer or its servants as legitimate employees. It has no living legal tissue. It enjoys neither the identity nor the rights, privileges or immunities of a legal organization. Unless these findings by the Congress are idle words, if lacks the power to make contracts and cannot enter into the relationship of employer and employee. No agency of a foreign power or its subsidiary organizations can have a legal status as part of ‘1 an authoritarian dictatorship within a republic,” as the Communist Control Act says, certainly where its reason for existence is that which is above stated. Taxation does not make it legal (United States v. Yuginovich, 256 U. S. 450, 462; United States v. Stafoff, 260 U. S. 477, 480; United States v. One Ford Coupe, 272 U. S. 321, 326).

These conclusions are in accord with the majority opinion insofar as it upholds the suspension of the registration of the Communist Party—State and national—but not in regard to the allowance of unemployment insurance to Albertson. In our view the order of the Appellate Division should be reversed in its entirety and the determination of the Unemployment Insurance Appeal Board reinstated.

Judge Dye concurs with Chief Judge Desmond; Judge Fuld dissents in part and votes to affirm the order appealed from in all respects in an opinion in which Judge Fboessel concurs; Judge Van Voorhis concurs in part but votes to reverse the order appealed from and to reinstate the determination of the Unemployment Insurance Appeal Board in an opinion in which Judge Burke concurs; Judge Foster taking no part.

Order of the Appellate Division modified in accordance with the opinion herein and, as so modified, affirmed, with costs to claimant-respondent against the Industrial Commissioner.

      . His employment with the Communist Party has been treated as essential to qualify him for such benefits.

      . Paragraph (c) of subdivision 1 of section 560 does not appear in the reeodification which took effect in January of 1960.

      . As noted in footnote 2, this paragraph does not appear in the recent reeodifieation of section 560 which became effective January 1, 1960. It seems to have been omitted for technical considerations and without any regard to underlying policy.


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

text:
    Paul C. Dooley, Doing Business as Dooley Provision Company, Respondent, v. Thomas Anton, Individually and as Secretary of Food Stores Local No. 34, Affiliated with Amalgamated Meat Cutters, Butchers and Allied Market Employees of AFL, et al., Appellants.
    Argued January 4, 1960;
    decided May 27, 1960.

      Richard Lipsitz for appellants.
    I. The New York courts may not enjoin peaceful, nonviolent picketing of the premises of an employer whose business affects interstate commerce. If the picketing involved herein was for a “ recognitions! ” purpose, the same is a violation of section 8 (subd. [b], par. [2], cl. [A]) of the National Labor Relations Act as amended (Taft-Hartley Act). (Pleasant Val. Packing Co. v. Talarico, 5 N Y 2d 40; National Labor Relations Bd. v. International Assn, of Machinists, Lodge 942, 263 F. 2d 796; National Labor Relations Bd. v. O’Keefe & Merritt Mfg. Co., 178 F. 2d 445; Labor Bd. v. Greyhound Lines, 303 U. S. 261.) II. Picketing to compel recognition is no more or less unlawful because of the existence of a contract with another union. III. In any event, under the decisions of the United States Supreme Court, the picketing involved herein is picketing which is exempted from prohibition from the State courts where it is peaceful and nonviolent. (Garner v. Teamsters Union, 346 U. S. 485; Weber v. AnheuserBusch, 348 U. S. 468; Retail Clerks Assn. v. Newberry Co., 352 U. S. 987; Guss v. Utah Labor Bd., 353 U. S. 1; Meat Cutters v. Fairlawn Meats, 353 U. S. 20; San Diego Unions v. Garmon, 353 U. S. 26, 359 U. S. 236; Hotel Employees v. Sax Enterprises, 358 U. S. 270; Goodwins, Inc., v. Hagedorn, 303 N. Y. 300.) IV. The United States Supreme Court has already held that peaceful, nonviolent picketing for recognition by a minority union violates the Taft-Hartley Act. (Teamsters Union v. Vogt, Inc., 354 U. S. 284.) V. If the picketing herein is found to be other than for the purpose of recognition, then it is protected both under State and Federal law from injunctive relief. (Wood v. O’Grady, 307 N. Y. 532; Sales Drivers Union v. Labor Bd., 229 F. 2d 514, 351 U. S. 972.)

      Donald D. Bentley for respondent.
    I. The activities of defendants-appellants were enjoinable under the New York law. The picketing and other activities involved here were clearly recognitional rather than organizational in character and purpose. II. Picketing and other activities designed to force recognition of a stranger union by an employer already under contract with a union representing a majority of his employees are enjoinable. (Goodwins, Inc., v. Hagedorn, 303 N. Y. 300; Wood v. O’Grady, 307 N. Y. 532; Pleasant Val. Packing Co. v. Talarico, 5 N Y 2d 40.) III. The New York State courts have jurisdiction of this matter. Pre-emption of jurisdiction from the State courts to the National Labor Relations Board is limited to violations of the National Labor Relations Act. (Garner v. Teamsters Union, 346 U. S. 485.) IV. The conduct of defendant-appellant does not constitute a violation of section 8 (subd. [b], par. [1], cl. [A]) of the National Labor Relations Act as claimed. (Metzger Co. v. Fay, 4 A D 2d 436; Colonial Super Markets v. Liss, 7 Misc 2d 746; Windsor Diner v. Dalles, 2 A D 2d 759; Trading Port v. Robilotto, 8 Misc 2d 343.) V. The Congress, by passage in the 1959 Labor Management Act of specific provisions regulating or prohibiting the type of picketing herein enjoined, has clearly affirmed that such was not the earlier Federal law. VI. The decision of this court in Pleasant Val. Packing Go. v. Talarico (5 N Y 2d 40) is not in conflict with the decisions of the United States Supreme Court. (Garner v. Teamsters Union, 346 U. S. 485; Aetna Frgt. Lines v. Clayton, 228 F. 2d 284; San Diego Unions v. Garmon, 359 U. S. 236.) VII. Plaintiff-respondent has been irreparably damaged.
   Froessel, J.

The question we are called upon to decide is

whether an injunction permanently restraining peaceful recognitional picketing by two minority unions, where the employer had recognized and contracted with a different and independent union representing a majority of his employees, may stand. It is clear that the employer’s business activities affect interstate commerce for the purpose of the jurisdiction of the National Labor Relations Act (U. S. Code, tit. 29, § 151 et seq., herein called the Act), and the lower courts necessarily assumed so in their decisions. The employer was awarded injunctive relief on the authority of our decision in Pleasant Val. Packing Co. v. Talarico (5 N Y 2d 40).

The facts in the Pleasant Valley case were substantially similar to the facts found here, except that the independent union in that case had been certified by the National Labor Relations Board (herein called the Board) as the exclusive bargaining agent of the employees. It should be noted, however, that the right of employees to bargain collectively through an exclusive bargaining representative is not conditioned upon an antecedent certification by the Board where the majority status of the union is clearly established; an employer who denies recognition to a noncertified majority union commits an unfair labor practice (Mine Workers v. Arkansas Flooring Co., 351 U. S. 62; Labor Bd. v. Mine Workers, 355 U. S. 453, 462-463; Brooks v. Labor Bd., 348 U. S. 96, 100-101; National Labor Relations Bd. v. Kobritz, 193 F. 2d 8, 14).

We held, in Pleasant Valley, that recognitional picketing by a stranger union designed to coerce an employer to commit an unlawful act—i.e., to bargain with the picketing union despite the fact that another union had been" certified as the exclusive bargaining agent of the employees—was neither protected nor prohibited activity under the Act, and hence the State courts were free to assume jurisdiction. Subsequent to the Pleasant Valley decision, however, the Supreme Court of the United States decided San Diego Unions v. Garmon (359 U. S. 236) which, in the words of Justice Hablan’s concurring opinion, ‘ ‘ will stand as a landmark in future ‘ pre-emption ’ cases in the labor field ” (p. 250).

The Garmon case involved peaceful picketing designed to coerce the employer into signing a union shop agreement, and, in reversing a judgment of the California Supreme Court awarding the employer tort damages for injuries caused by the Unions’ activities, the Supreme Court held (at pp. 245-246): “ When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted. * * * Since the National Labor Relations Board has not adjudicated the status of the conduct for which the State of California seeks to give a remedy in damages, and since such activity is arguably within the compass of § 7 or § 8 of the Act, the State’s jurisdiction is displaced.”

The Garmon decision was held to be controlling in Columbia Broadcasting System v. McDonough (6 N Y 2d 962), where a union—engaged in a strike against two companies which supplied CBS with lantern slides and photographic prints •—commenced secondary picketing of CBS with the avowed purpose of compelling CBS to cease doing business with the struck suppliers. Special Term temporarily enjoined the secondary picketing on the authority of the Pleasant Valley decision, but the Appellate Division reversed (8 A D 2d 695) and held: “ Where, as here, there is an arguable question of jurisdiction, determination in the first instance must be left to the National Labor Relations Board and the State courts are not primary tribunals to adjudicate such issue. (San Diego Unions v. Garmon, 359 U. S. 236.) ” Since it was arguable whether the secondary picketing constituted an unfair labor practice under section 8 (subd. [b], par. [4], cl. [A]) of the Act (U. S. Code, tit. 29, § 158, subd. [b], par. [4], cl. [A]), we unanimously affirmed the Appellate Division (6 N Y 2d 962).

It is apparent that as a result of the Garmon decision (supra), unanimously followed in Columbia Broadcasting, the Pleasant Valley case (supra) is no longer controlling. It was certainly arguable in Pleasant Valley, where we were divided 4 to 3, whether reoognitional picketing by a stranger union, in the face of an existing Board certification of a different union, violated section 8 (subd. [b], par. [4], cl. [C]) of the Act (U. S. Code, tit. 29, § 158, subd. [b], par. [4], cl. [C]). In that case, we took the position that “ any doubt ” in a particular case “ should be resolved in favor of [State] jurisdiction ” (5 N Y 2d, at p. 47). However, the basic approach to a labor pre-emption problem announced in the Garmon case is diametrically opposed to this view. In Garmon, the Supreme Court adopted the rule that any doubt must be resolved in favor of ‘ ‘ the exclusive primary competence of the Board”, the “governing consideration” being “that to allow the States to control activities that are potentially subject to federal regulation involves too great a danger of conflict with national labor policy ” (359 U. S., at pp. 245-246).

The Garmon decision had not yet been rendered at the time the lower courts decided this case, and hence they understandably asserted jurisdiction under the Pleasant Valley decision. Meanwhile, the circuit courts disagreed as to whether peaceful picketing for recognition violated section 8 (subd. [b], par. [1], cl. [A]) of the Act (U. S. Code, tit. 29, § 158, subd. [b], par. [1], cl. [A]), which makes it an unfair labor practice for a union to restrain or coerce employees in the exercise of the rights guaranteed them by section 7 (cf. National Labor Relations Bd. v. United Rubber, Cork, Linoleum & Plastic Workers, 269 F. 2d 694 [4th Cir.], with Drivers, Chauffeurs & Helpers Local v. National Labor Relations Bd. [Curtis Bros.], 274 F. 2d 551 [D. C. Cir.], cert, granted 359 U. S. 965, and National Labor Relations Bd. v. International Brotherhood of Teamsters, 272 F. 2d 85 [2d Cir.]).

While the appeal to this court was pending, the Supreme Court, in the Curtis Bros, case (Labor Bd. v. Drivers Local Union [Curtis Bros.], 362 U. S. 274), held (p. 290) “ that Congress in the Taft-Hartley Act authorized the Board to regulate peaceful ' recognitional ’ picketing only when it is employed to accomplish objectives specified in § 8 (b) (4); and that § 8 (b) (1) (A) is a grant of power to the Board limited to authority to proceed against union tactics involving violence, intimidation, and reprisal or threats thereof—conduct involving more than the general pressures upon persons employed by the affected employers implicit in economic strikes.” Thus, in the words of the Garmon decision (supra, at p. 246), the Supreme Court has supplied us with a “compelling precedent” that the union activity here enjoined — under the law in effect at the time of issuance of the injunction by Special Term—was not an unfair labor practice, and hence the State courts were not pre-empted of jurisdiction on that count.

Whether it follows that peaceful recognitional picketing is protected activity within the compass of section 7 of the Act (U. S. Code, tit. 29, § 157)—the other side of the pre-emption coin—is not altogether clear from the Curtis Bros, decision (Labor Bd. v. Drivers Local Union, supra). In discussing the limitations or qualifications on the right to strike and picket referred to in section 13 of the Act (U. S. Code, tit. 29, § 163), the court made reference to the doctrine fashioned by the Board and the court “that the Board should deny reinstatement to strikers [or pickets] who engaged in strikes [or picketing] which were conducted in an unlawful manner or for an unlawful objective ” (362 U. S. 274, 281; emphasis supplied).

The statement that employees who engaged in picketing ‘ for an unlawful objective ” would not be entitled to reinstatement implies that such picketing is not protected activity within section 7. It is clear in the present case that the objective of the picketing, as found by the lower courts, was to induce the employer to commit an unfair labor practice by breaching a contract he had made with a majority independent union. In the “ sensitive area of peaceful picketing ”, however (362 U. S. 274, supra, at p. 284), it is susceptible of reasonable argument that picketing which is not proscribed by section 8 may be protected by section 7 for purposes of pre-empting the State’s injunctive processes (see Weber v. Anheuser-Busch, 348 U. S. 468, 474-475), and hence, under the Garmon doctrine, it is the Board, not the State courts, which has exclusive primary jurisdiction to resolve the issue.

In any event, a compelling reason for reversing the judgment below is that the Landrum-Griffin Amendments to the National Labor Relations Act (Labor-Management Reporting and Disclosure Act of 1959, 73 U. S. Stat. 519 et seq.), which went into effect on November 13, 1959, have effectively rendered moot the issue of State jurisdiction here involved. Paragraph (7) of subdivision (b) of section 8 of the Act, added by the new law (§ 704, subd. [c]), expressly makes recognitional picketing an unfair labor practice where the employer has lawfully recognized another labor organization, and a question concerning representation may no.t appropriately be raised under section 9 (Act, § 8, subd. [b], par. [7],'cl. [A]). “This new statutory provision seems squarely to cover the type of conduct involved here” (Memorandum of Mr. Justice Stewart in the Curtis Bros, case, 362 U. S., supra, at p. 292; see, also, 44 Minn. L. Rev. 257, 264), and in any event it is the province of the Board, not the State courts, to decide the issue in the first instance. Since it is now arguably within the compass of the Board’s jurisdiction to enjoin the picketing here involved, the permanent injunction granted below obviously cannot stand.

The judgment should be reversed, without costs to either party, and the complaint dismissed.

Van Voorhis, J. (concurring).

Invoking the pre-emption doctrine of the United States Supreme Court in labor cases, culminating in San Diego Unions v. Garmon (359 U. S. 236), appellant union asks the court to rule in its favor on the ground that it has violated the law. It has been enjoined from picketing to exert economic pressure on an employer to compel recognition of a different union from the one with which the émployer has a lawful labor contract, The lawfulness of the contract with the other union was confirmed, as we were informed by counsel for both sides upon the reargument, by an election conducted by the National Labor Relations Board at which the employees voted against appellant union and in favor of the union having the labor contract. Such illegal conduct has been held to be subject to restraint by State injunction notwithstanding that the plaintiff is engaged in interstate commerce (Pleasant Val. Packing Co. v. Talarico, 5 N Y 2d 40; Goodwins, Inc., v. Hagedorn, 303 N. Y. 300). Regardless of whether those decisions were overruled in Columbia Broadcasting System v. McDonough (6 N Y 2d 962), as a result of San Diego Unions v. Garmon (supra), or whether Labor Bd. v. Drivers Local Union (Curtis Bros.) (362 U. S. 274) by implication disclaims Federal pre-emption under these circumstances, the 1959 Landrum-Griffin Amendments to the National Labor Relations Act (§ 8, subd. [b], par. [7], added by Labor-Management Reporting and Disclosure Act of 1959, 73 IT. S. Stat. 519 et seq.) specifically render recognitional picketing an unfair labor practice where the employer has lawfully recognized another labor organization. For that reason, under the Federal pre-emption doctrine, I am constrained to the conclusion that appellant union’s contention must have its way that it should be allowed to engage in this disruptive illegal activity for the very reason that the United States Congress has expressly prohibited it. Such is the effect of San Diego Unions v. Garmon (359 U. S. 236, supra).

It is not for us to reason why the States should be deprived of jurisdiction, nor whether doing so is in harmony with established theories of federalism under which States are allowed to proceed where their policies do not contravene Federal policy nor place a burden on interstate commerce.

It should be clearly pointed out, however, that regardless of whether the National Labor Relations Board assumes or declines to exercise jurisdiction to take steps to stop this illegal behavior, the States have been relieved from responsibility in this kind of ease. Appellant union evidently considers that there will be no redress for the employer’s just grievance in the Federal sphere, otherwise it would not be proclaiming the illegality of its conduct as its shield and protection.

Lest there be any assumption that the State courts are shirking responsibility, or uncertainty about the existence or dimensioixs of this “No Man’s Land” between Fedei-al and State jurisdiction into which we are forbidden to enter, I would call attention to addresses by members of the National Labor Relations Boai'd and of the New York State Labor Relations Board. (Philip Ray Rodgers, Current Problems in the Administration of the Taft-Hartley Act, 1958 Record of Proceedings of Labor Relations Law Sectioix of American Bar Assn., pp. 7-11; Joseph Di Fede, Chairman of New York State Labor Relations Board, Problems of Federal-State Jurisdiction in Labor-Management Disputes, New York University’s Eleventh Annual Conference on Labor, 1958, pp. 85-114.) Chairman Di Fede thus outlined the extent and nature of the “No Man’s Land ” from the State point of view:

“ The extent of the unregulated area cannot be determined precisely, but it is significant, in this regard, that 90 per cent of the business enterprises throughout the country employ less than 20 persons.
* * *
1 It has been estimated that 25 per cent of the non-agricultural labor forces are employed in businesses over which the national board does not assert jurisdiction (Rosenthal, ' Exclusions of Employees under the Taft-Hartley Act,’ 4 Industrial and L. R. R. 556). The 1958 estimate of the Small Business Administration is that the national board’s jurisdictional standards cover less than 3 per cent of the retail industry in the United States, less than 1 per cent of services and public utilities, and less than 50 per cent of the manufacturers.
‘ ‘ Included in the ' no-man’s land ’ are 126 local transit companies which serve 129 cities with a total population of over 50 million people and the entire hotel industry, over which the national board, with congressional approval, consistently has declined jurisdiction. In the State of New York, for instance, there are some 7,800 hotels and inns employing over 120,000 workers.
“The national board has also refused to assert jurisdiction over taxicab companies. In New York City, alone, there are hundreds of taxicab companies employing over 30,000 drivers. The entertainment and sport industry, operating thousands of nightclubs, vaudeville shows, theatres, baseball parks and clubs, hockey rinks, boxing clnbs, circus exhibitions and race tracks, employing tens of thousands of workers, is another industry over which the national board declines to assert jurisdiction because of the essentially local nature of the activities.” (pp. 91-92).

To this he added (p. 96) that The state board, in view of the decision of the Supreme Court, has been compelled to dismiss cases involving franchised automobile dealers, local newspapers, automobile glass distributors, and vending machine companies, even though these companies admittedly failed to meet the national board’s jurisdictional standards.” Concerning this Mr. Di Fede made the following observation (pp. 96-97): “ The foregoing analysis of the extent and nature of the ‘ no-man’s land ’ demonstrates that the extent of this unregulated area is indeed vast. The evils and dangers inherent in the existence of such an unregulated area need no lengthy exposition. The parties to labor disputes in this unregulated area are left without a forum for the peaceful resolution of their disputes. They are necessarily relegated to the use of economic warfare, contrary to both national and state policy. Moreover, the states, which bear the consequences of economic disruption due to strikes and the consequent reduction in production and sales, and which must exercise the obligation of policing such disputes, are left without power to protect the public interest in maintaining industrial peace.”

The problems of the increasing backlog of cases before the National Labor Relations Board, due to this pre-emption doctrine, is vividly and eloquently summarized by Mr. Rodgers (1958 Record of Proceedings of Labor Relations Law Section of American Bar Assn., sufra, p. 11): “ Of this I can assure you: there is a limit — a mental and physical limit—to what any five individuals can do. As this pyramid broadens and these cases multiply, there must inevitably come a point—and in my opinion we are even now rapidly approaching that point —when the personal efforts of five men can achieve no more.” The reasons of the National Labor Relations Board for declining to enforce the Federal law in local situations of the present type are thus made apparent. Mr. Rodgers said, concerning uniformity (pp. 10-11): “ It has at times been facetiously, and yet at the same time wistfully, said that the way for the Board to overcome the backlog is for Board members to affirm the trial examiners without comment, and to sustain the regional directors by telephone. It is true that such actions would cope with the backlog. But they would not represent the type of responsible action which the law contemplates and .the country demands. ’ ’

A further effect of the pre-emption rule is to preclude parties to disputes of this nature—whether they be employers or unions — from maintaining private suits in the courts, and to subject them exclusively to the paternalistic, administrative supervision of a board having the discretion to decide, even if the time and physique of board members could be extended, whether employers or unions should be allowed to resort to the courts through the board for the enforcement of their undoubted legal rights.

The recent amendment to subdivision (a) of section 10 to enable the National Labor Relations Board to cede jurisdiction to such States as have almost identical labor laws appears to have had little effect (Fanning, The No-Man’s Land ” and the National Labor Relations Board’s Jurisdictional Policies, 8 Catholic U. L. Rev. [Jan., 1959], pp. 1-12, at p. 10).

These factors, important as they are, can no longer stay the abolition of the powers and responsibilities of the State courts and boards in these matters as a result of the pre-emption doctrine. There should be no misunderstanding that, having been charged with these responsibilities for many years, the State courts and boards are subject to them no longer in the fields which have been described, except in case of activities that are so local in nature as not to come at all within the wide and constantly expanding area of interstate commerce. How long a federalized system can stand this theory of decision may be open to question.

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

Upon reargument: Judgment reversed and complaint dismissed, without costs.