People v. Dooley

Willard Bartlett, J.: The determination of this appeal depends upon the constitutionality of the amendments to the Greater Yew York charter enacted by the Legislature of 1901, providing that the city magistrates in the second division of the city of Yew York should be elected instead of being appointed by the mayor. Under the Greater Yew York charter as originally enacted (Laws of 1897, chap. 378) the city of Yew York was divided into two divisions for the purposes of the administration of criminal justice. The first division comprised the boroughs of Manhattan and the Bronx; the second division comprised the boroughs of Brooklyn, Queens and Richmond. (§ 1390.) At. the time of the enactment of the original Greater Yew York charter the office of city magistrate already existed in the former city of Yew York, having been established by chapter 601 of the Laws of 1895. The charter provided that the city magistrates in office when it took effect should continue to hold office until the expiration of their respective terms, and should be known as the city magistrates of the first division. It further provided that their successors should be appointed in the same manner as provided in the act of 1895. That act provided that they were to be appointed by the mayor, and should hold office for a term of ten years. The charter conferred upon the city magistrates thus continued in office and their successors the same.power and jurisdiction which they had by law upon December 31, 1897. (§ 1392.) The charter then proceeded to provide for the office of city magistrate in the second division. The police justices in the former — 516 — city of Brooklyn, who should be in office, on January 31, 1898, were to continue in office for the residue of their respective terms, but were to be “ known as city magistrates of the second division of the city of New York, and have the powers and duties hereinafter prescribed for city magistrates and no other.” After providing for the appointment of additional city magistrates, who should be residents of the borough of Queens and residents of the borough of Richmond, the charter- prescribed as follows: “ The successors of said magistrates shall at all times thereafter be appointed by the mayor of said city, and shall be residents and electors of the borough from which said magistrates whom they shall be appointed to sue-need were appointed, and shall hold office for ten years.” . (§ 1394.) The powers of the city magistrates whose continuance in office of appointment was thus provided for, were dealt with in section 1396 of the original Greater New York charter in these words: “The said magistrates appointed or continued in office pursuant to this title, shall have and exercise within the said second. division such powers as are conferred by law upon the city magistrates in the city of New York by chapter six hundred and one of the laws of eighteen hundred and ninety-five and the acts amending the same, except as herein otherwise provided.” There was thus established a uniform system for the selection of city magistrates in both divisions of the Greater New York. After the expiration of the terms of those who were expressly continued in office, their successors were to be appointed by the mayor for terms of ten years each. Generally speaking, their powers were those formerly possessed by police justices in the old city of New York. As has already been seen, the charter referred to their powers as having been conferred upon them by the act of 1895. Referring to that act, we find that section 3 thereof provides as follows : “ On and after the first day of July, eighteen hundred and ninety-five, the city magistrates appointed pursuant to this act shall have and shall exercise all the powers and jurisdiction, not inconsistent with the provisions of this act, which, on the thirtieth day of June, eighteen hundred and ninety-five, shall be vested by law in the police justices, except proceedings respecting bastards.” (Laws of 1895, chap. 601, § 3.) On the date thus specified the general provisions of law in force relating to the police courts and police — 517 — justices and their powers in the city of New York were to be found in chapter 18, title 11, of the New York City Consolidation Act. (Laws of 1882, chap. 410, §§ 1541-1568.) Among these provisions was the following: “ In all cases of arrest for intoxication or disorderly conduct in the city of New York the police justices shall have power, in addition to holding the party to bail for good behavior, to impose a fine not exceeding ten dollars in each case., or to commit to the city prison not exceeding ten days, each day of imprisonment to be taken as a liquidation of one dollar of the fine.” (§ 1562.) This section indicates that a city magistrate was authorized to exercise some functions over and above those of a mere committing magistrate. He could try and determine the guilt of persons charged with intoxication or disorderly conduct, and in case of conviction'impose a fine or sentence of imprisonment. To this extent he exercised the power of a court; and, in fact and law, held a court of inferior criminal jurisdiction within the meaning of the Constitution. It is to be noted that in the New York City Consolidation Act the tribunals over which the police justices presided were denominated “ police courts,” and that in the act of 1895, as well as in the Greater New York charter, the word “court,” as applicable to the tribunal over which a city magistrate presides, frequently occurs. (Laws of 1895, chap. 601, §§ 4, 5, 8; Laws of 1897, chap. 378, §§ 1398, 1400.) Furthermore, in the case of Koch v. Mayor (152 N. Y. 72, 86), in which the Court of Appeals sustained the constitutionality of the act of 1895, which abolished the office of police justice and created the. office of city magistrate in the former city of New York, the tribunal of the city magistrates is spoken of as “ the new court.” In 1901, when the Legislature came to revise the Greater New York charter (by chapter 466 of the laws of that year), it provided, for the election of city magistrates within the borough of Brooklyn in lieu of their appointment. “ At the general election to be held in the borough of Brooklyn in the year nineteen hundred and one,” says section 1392 of the revised Greater New York charter, “ there shall be elected in each congressional district, as then constituted in said borough, one city magistrate, and in the territory constituting the borough of Brooklyn there shall be- elected two city magistrates at large, and the terms of office of all said city magistrates so elected — 518 — shall commence on the first day of January, nineteen hundred and • two, and continue for six years thereafter.” In the boroughs of Manhattan and the Bronx, the method of appointment was retained. Under this provision the election of city magistrates therein provided for took place in 1901; and the result of the canvass showed the election of one magistrate each in the six several congressional districts comprised within the borough of Brooklyn, and two magistrates voted for by the electors in the borough at large. The right of the persons thus chosen was questioned by the city magistrates holding office in the borough of Brooklyn at the time of the election by virtue of appointments from the mayor under the original Greater Hew York charter. The Attorney-General instituted the present action to settle the controversy which arose between the two sets of claimants. Four of the persons who had been appointed city magistrates by the mayor under the. original Greater Hew York charter, Messrs. Dooley, Furlong, Haumer and O’Reilly, interposed an answer setting up the unconstitutionality of the legislation changing the method of selection from the appointive to the elective System. The Attorney-General demurred to their answer, and the ' demurrer has been overruled at the Special Term. From the interlocutory judgment entered upon the decision there, the Attorney-General has appealed to the Appellate Division. It should be noted here that the four respondents whose contention that the charter amendment is unconstitutional lias been sustained in the court below, were appointed by the mayor under peculiar circumstances. The amendment of 1901 not only provided that city magistrates in Brooklyn should he elected instead of' being appointed, but also assumed to extend the terms of four city-magistrates in office when it took effect. The terms of these officers expired on the last day of April, 1901; but the amendment purported to extend their terms until January 1,1902. (Laws of 1901, chap. 466, § 1392.) This provision was held to be unconstitutional in a mandamus proceeding heard before Mr. Justice Gaynoe, whose decision to that effect seems to have been acquiesced in by all parties concerned. (Matter of Kelly v. Van Wyck, 35 Misc. Rep. 210.) A writ of mandamus was' granted^ commanding the mayor to appoint the successors of the- four persons whose terms expired on April 30, 1901, and, in compliance with the writ, Mayor Van — 519 — Wyck appointed each of the four respondents. It is true, that although the original Greater Hew York charter expressly provided that persons so appointed should hold office for ten years (Laws of 1897, chap. 378, § 1394), the mayor’s certificate of appointment in the case of each of the respondents declared the appointment to be for the unexpired portion of a term which commenced Hay 1, 1901, and which ends December 31, 1901; ” thus recognizing the validity of the legislation providing for the future election of city magistrates in Brooklyn, which is attacked upon the present appeal. Whether this attempted limitation of the term of appointment in the certificate has any effect or not, will be discussed later. The constitutional provision which is alleged to have been violated by the enactment of the amendment in question here, is the last clause of section 17 of article 6 of the Constitution of 1894, which reads as follows.: “ The electors of the several towns shall, at their annual town meetings, or at such other time and in such manner as the Legislature may direct, elect justices of the peace, whose term of office shall be four years. In case of an election to fill a vacancy occurring before the expiration of a full term, they shall hold for the residue of the unexpired term. Their number and classification may be regulated by law. Justices of the peace and judges or justices of inferior courts not of record, and their clerks, may be removed for cause, after due notice and an opportunity of being heard, by such courts as are or may be prescribed by law. Justices of the peace and district court justices may be elected in the different cities of this State in such manner, and with such powers, and for such terzns, respectively, as are or shall be prescribed by law ; all other judicial officers in cities, whose election or appointment is not otherwise provided for in this article, shall be chosen by the electors of such cities, or appointed by some local authorities thereof.” The argument is that the city magistrates provided for in the charter are judicial officers in cities whose election or appointment is not otherwise provided for in article 6 of the Constitution ; that hence the command that such judicial officers shall be chosen by the electors of such cities or appointed by some local authorities thereof, becomes applicable; and that where the Legislature determines that the choice shall be made by election, all the electors in the city in which the officers are to exercise jurisdiction must be — 520 — afforded an opportunity to participate in the election. This opportunity, it is said, has not been afforded in the present case, inasmuch as six of the magistrates who have received certificates of election were voted for only by the .electors of the several congressional districts .in which they respectively reside, while two of them were voted for, not by the electors. throughout the city, but only by voters in the borough of Brooklyn. It is also argued that the. last clause of section 17 of article 6 of the present Constitution contemplates a. uniform system for the selection of the same, class of judicial officers throughout a single city, and that it is not competent for the Legislature to provide as to a number of judicial officers of the same class that a portion of them in one part of the city shall be selected by appointment, and another in another part of the city be chosen by popular election. The. phrase “ the electors of such cities ” is a broad one, without qualification or limitation in the clause in which it occurs, and is certainly comprehensive enoiigh to include all the persons entitled to vote within the municipality. I do .not well see how it can be given any effect less than tins without adding to the- Constitution something which we do not find in it. The language is not ambiguous, and there seems no .reason for restricting it or holding that it can apply to the electors of a part only of a city, when, if the intention thus to limit it had existed on the part of the Constitutional Convention, it would have been so easy to express that intention in a manner that would prevent all possibility of doubt on the subject. The purpose in view in framing the clause of section 1Y, under consideration, appears to me to be perfectly plain; it was to entitle all the electors, within the territorial jurisdiction of the city,- judicial officers therein mentioned, to the right to take part in choosing such' officers in casé the Legislature determined that they should be chosen by election", rather than by appointment. If this view is not correct, it is difficult to see why the Legislature might not provide for the election by .the voters in the borough of Richmond alone of city magistrates whose jurisdiction should extend all over the territory of the Greater Hew York. This construction, however, is assailed on various, grounds. It is suggested, in the first place, that the last " clause of section 17 of article 6 in the. present Constitution has no application at all to the — 521 — office of city magistrate, inasmuch as that office was created in 1895, after the adoption of the present Constitution, and that the section is to be deemed to apply only to offices existing at the time when the Constitution was adopted. The basis for this suggestion may be found in the language used by O’Brien, J., in Curtin v. Barton (139 N. Y. 505, 510), where that learned judge intimates that-section 17 may apply only to offices and courts existing when the Constitution went into effect. It is true he is there speaking of section 18 of article 6 of the Constitution' as amended in 1869, but that section was substantially the same as the present section (17), the alterations made by the convention of 1894 being only immaterial verbal changes. In Curtin v. Barton (supra), however, the Court of Appeals distinctly refused to determine the question whether the provision of the Constitution under consideration was restricted in its application to tribunals and officers in existence at the time of the adoption of the Constitution, and there is nothing in what was said on the subject in that case to indicate which construction the Court of Appeals-deemed preferable. Under these circumstances, we must determine the question with the aid of the best light we can get, and I am strongly inclined to think that the clause under discussion should be deemed operative not only upon city judicial officers whose offices-were already in existence, but upon those whose offices might thereafter be created. The general rule is that the operation of a Constitution is prospective (Cooley Const. Lim. [6th ed.] 77); and where the courts have held otherwise and given the fundamental law a retrospective effect, or confined its operations only to a condition of things existing at the time of its adoption, this has been, done because the intent thus to limit the effect of the constitutional provision has been clearly manifest either in the instrument itself or is distinctly inferable from the existing conditions with which the framers of the Constitution were attempting to deal. Thus, in the cases of People v. Draper (15 N. Y. 532) and New York Fire Department v. Atlas Steamship Co. (106 id. 566), the constitutional provision under consideration (Const. of 1846, art. 10, § 2) distinguished clearly between officers whose offices then existed “ and all officers whose offices may hereafter be created by law,” so-as to leave absolutely no doubt that the officers referred to in the — 522 — first part of the section were only those whose offices were already in existence. The same observation applies to the case of People ex rel. Kingsland v. Palmer (52 N. Y. 83). ■ But it is argued that even if it be conceded that section 17 of article 6 applies to the office of city magistrate, we must read that section in connection with section 18, which, is said to. be in pari materia with it, and that such reading forbids the conclusion reached by the court below. ' Section 18, so far as applicable to the questions under consideration here, provides as follows: “ Inferior local courts of civil and criminal jurisdiction may be established by the Legislature, but no inferior local court hereafter created shall be a court of record, * * * Except as herein otherwise provided, all judicial officers .shall be elected or appointed at such times and in such manner as the Legislature may direct.” City magistrates, we are told, are judges of inferior local courts, created under section 18, and its language, therefore,, applies to them. I agree that the tribunals over which they preside are inferior local courts, within the meaning of section 18 of the Constitution, but it does not follow that they are to be elected or appointed in such manner as the Legislature may direct, under the provisions of the last clause of such, section. That, clause is qualified by the introductory .phrase “ except as herein otherwise provided.” This exception cannot be disregarded, and when we look back we find that so far as judicial officers in cities are concerned, with the exception of justices of the peace and district court justices, the requirement is that they shall be chosen by the electors of such cities or appointed by some local authorities thereof. As was pointed out by Mr. Justice Mabean in the case of People ex rel. Joyce v. Guden (printed in the appeal book" herein), the exception in section 18 excludes the cases provided for in section 17. Again, it is contended that if the judgment below is correct, the organization of the present Municipal Court in the city of Mew York is unconstitutional, because the justices are elected in specified districts in the city and exercise their functions in various other districts. So, also, it is suggested that the former system of district courts in the old city of Mew York must also, on the same principle, be deem.ed to have been unconstitutional. This argument, I think, — 523 — overlooks the peculiar provisions of the Constitution in regard to district courts in cities. Since 1846 the Legislature has always had control over the manner in which district court justices in cities should be elected. Thus, in the Constitution of 1846 itself, we find this provision : “All judicial officers of cities and villages, and all such judicial officers as may be created therein by law, shall be elected at such times and in such manner as the Legislature may direct.” (Const. of 1846, art. 6, § 18.) The judiciary article, as amended in 1869, was more specific, referring to district court justices expressly as follows: “ Justices of the peace and district court justices shall be elected in the different cities in this State, in such manner, and with such powers, and for such terms, respectively, as shall be prescribed by law.” (Const. art. 6, § 18, as amd. in 1869.) And in the Constitution of 1894 we find substantially the same language in section 17, where it is provided that: “Justices of the peace and district court justices may be elected in the different cities of this State, in such manner, and with- such powers, and for such terms, respectively, as are or shall be prescribed by law.” The Legislature thus possessing, within its discretion, absolute power as to the mcmner in which district court justices might be elected, could provide for their election in districts if it saw fit. • The same line 'of reasoning applies to the justices of the Municipal Court, it having been determined by the Court of Appeals that the Municipal Court of the city of New York, as established by the Greater New York charter, is merely a continuation of the preexisting district courts of the. same city and the justices’ courts in the city of Brooklyn. (Worthington v. London G. & A. Co., 164 N. Y. 81.) Hence the Legislature could authorize the election of the justices thereof by districts, under section 17 of article 6 of the Constitution of 1894, already cited. The fact, therefore, that Municipal Court justices may be elected by districts in no wise tends to show that city magistrates may thus be constitutionally chosen. By the Greater New York charter (§ 1345) the City Court of New York was continued,.11 and said court and the justices thereof shall have the same powers and jurisdiction as are now conferred upon them by law.” The justices of this court are chosen only by electors in the territory which comprised the old city of New York before consolidation ; and it is suggested that a construction of the last clause of — 524 — section 17 of article 6 of the Constitution, which requires that judicial officers in cities, if elective, shall be chosen at an election in which all the electors of such cities shall have an opportunity to participate, would render the present method of choosing City Court justices unconstitutional. This argument I would answer thus: The word “cities,” as employed in that section, refers to municipalities existing as cities at the time provision was originally made by law for the establishment of the court or the creation of the judicial office; and a statute providing for the choice of such judicial officers by the electors throughout the whole, territory of such a city is not rendered unconstitutional by the subsequent incorporation of that city in a larger one, so long as the jurisdiction of the court and its judges remains confined to the territory in which the judges are voted for. From 1848 until 1873 the police justices of the old city of New York were elected in separate judicial districts and assigned by the common council to sit in the various police courts in rotation. (Laws of 1848, chap. 153, §§ 7, 8.) Their offices were rendered appointive by chapter 538 of the Laws of 1873. In behalf of the appellants it is said that this system of the election of police justices by districts in the old city óf New York must have been null and' void from 1848 to 1873, if the respondents are right in their posh tion. here. "This does not seem to me to be a correct deduction from the facts. During the entire period up to the time when the amended judiciary article of 1869 went into effect, the Constitution of the .State contained the provision already quoted in reference to another point, to the effect that all judicial officers of cities and villages and all such judicial officers as might be created therein by law, should be elected at such times and in such manner as the Legislature "might direct. (Const. of 1846, art. 6, § 18.). This authorized the election of the police justices in the city of New York by districts, and if the system at any time became obnoxious to the fundamental law, it was not until January 1, 1870, when the amended judiciary article of 1869 took effect; and the appointive system, which was substituted therefor, and was clearly constitutional, went into effect shortly after the passage of the act of 1873. (May 17, 1873.) ■ — 525 — Two other provisions of the Constitution are cited as tending to show that the result reached in the court below was erroneous. One of these provisions is contained in section 2 of article 10, in these words: “ All city, town and village officers, whose election or appointment is not provided for by this Constitution, shall be elected by the electors of such cities, towns and villages, or of some division thereof, or appointed by such authorities thereof, as the Legislature shall designate for that purpose.” I do not see how this provision can be deemed applicable to the case of judicial officers in cities, since their election or appointment is provided for in a prior article of the Constitution, to wit, in section 17 of article 6. The other provision cited is contained in section 3 of article 12, which relates to thé election of city officers, and the main purpose of which is to regulate the times at which the elections of such officers shall be held. The only portion of the section material to the present inquiry reads as follows : “ All elections of city officers, including supervisors and j ndicial officers of inferior local courts, elected in any city or part of a city, and of county officers elected in the counties of New York and Kings, and in all counties whose boundaries are the same as those of a city, except to fill vacancies, shall be held on the Tuesday succeeding the first Monday in November in an odd-numbered year, and the term of every such officer shall expire at the end of an odd-numbered year.” The phrase part of a city ” in this section is referred to as indicating that the Legislature may authorize the election of judicial officers of inferior local courts in cities for a subdivision of a municipality, and that it is not required where such officers are elected to enable all the electors in the city to participate in the election. Full effect, however, may be given to the phrase by regarding it as a qualification applying only to city officers and supervisors who are chosen in parts of a city; and it should not be regarded as applicable to judicial officers of inferior local courts, in view of the. preceding provision of the Constitution contained in section 17 of article 6 regarding the manner in which judicial officers in cities must be «chosen. This brings us to another question suggested by the amendatory legislation, the constitutionality of which is here attacked. May mot the Legislature provide for the establishment of inferior local — 526 — courts of criminal jurisdiction in a city, confining the jurisdiction of the tribunals thus created to that particular portion of the city whose electors are allowed to participate in thé choice of the magistrates ? And, in case this was done, would not the requirements of of section .17 of article 6, that such judges, if elected, shall be chosen by the electors of such cities be substantially complied with, even though no electors were allowed to vote for them except such, as resided within the territory to which the jurisdiction of the court was. to be confined ? In other words, may not the amended provisions of the Greater New York charter, providing for the election of city magistrates, some of them.by congressional districts and others at large, in the borough of Brooklyn, be regarded as a valid exercise of the power conferred upon the Legislature by section 18 of article 6 to establish inferior local courts of criminal jurisdiction % The answer to this question is furnished by the decision of the Court of Appeals in the case of People ex rel. Townsend v. Porter (90 N. Y. 68). There an act of the Legislature was pronounced unconstitutional which assumed to create a police court for a district not coterminous with the boundaries of any county, town, city or village. In that case Andrews, Ch. J., wrote as follows : “ The general authority given to • the Legislature by section 19, article 6, to' establish inferior local courts, supplements the other provisions and was, doubtless, intended to authorize the Legislature to establish local courts on the organization of new cities or villages, requiring the establishment of local judicial tribunals therein, or where in an existing city or village the existing courts'were inadequate. But we are- of opinion that the language of this section must be construed to refer to local courts, as historically known, that is,' courts established for and within one of the recognized territorial divisions of the State and as a part of the system of local government, and that it cannot be so construed as to atothorize the Legislature to ca/rve out from the.territory of the State a district for judicial purposes, not bounded by town or county, city or village lines, and erect therein a locad court. This construction is confirmed by what has been called the political tendency of the Constitution. The intention of the instrument was to define, as far as practicable, all the courts of the State, and, so far as they are defined, they are, either courts of general jurisdiction, co-extensive with the- whole. — 527 — State, or courts of counties, towns, villages or cities. By the section in question a flexible provision was made to meet the wants of new political communities, which from time to time should be organized according to the general plan. The Constitution seems carefully to guard the autonomy of the several divisions in all matters of local government, and to avoid, as far as practicable, any confusion or division of powers, or any obliteration of their local independence and control in all matters of local government. * * It would not, we think, comport with the spirit of the Constitution to allow a portion of a town, or of a county, not constituting either a city or village, to be dissevered for local judicial purposes from therest, leaving it a unit for-all other purposes of civil government. It would tend to'a separation and confusion of interests, and impair the usefulness of the system of town and local government, plainly fostered by the Constitution.” The congressional districts in the borough of Brooklyn in which the large number of city magistrates of the second division were respectively to be chosen are not recognized territorial divisions of the State forming a part of the system of local government, but are established for Federal purposes; and it seems to me that the power to create an inferior local court for such districts is denied by this decision in the Porter case. It may be that if the Legislature had undertaken to create an inferior local court of criminal jurisdiction for the territory of the Greater New York, bounded by the limits of Kings county, the statute establishing such a tribunal could be deemed constitutional; but this has not been attempted in the present case. There is an intimation that a distinction can be made in regard to the two magistrates elected at large in the borough of Brooklyn, the boundaries of that borough being coterminous with those of the county of Kings; but I think that the provisions in regard to those two magistrates are so interwoven with the éntire scheme as to be indissoluble from it, and that all the legislation on the subject must stand or fall together. As has already been pointed out, the certificates of appointment held by the four respondents herein, by the terms of the instruments, declared in substance that their offices as city magistrates should terminate on December 31, 1901. This declaration, however, must be regarded as surplusage. The section of the Greater — 528 — New York charter in force at the time the appointments were made provided that the term of a city magistrate .should be ten years; and when the mayor appointed a person to that office he was entitled to hold'it for the'term thus prescribed by law, unless that term had been abridged by some other law constitutionally enacted. . To sum up the general conclusions reached in this opinion, they may be stated thus: (1) The amendatory legislation contained in the revised Greater New York charter, making the city magistrates of the second division in the borough of Brooklyn elective instead of appointive, is unconstitutional; (2) the repealing clauses which form a part of that amendatory legislation are so connected with it that they are not to be regarded as any more effective than the rest, and, hence, a judgment condemning the substitution of the elective for the appointive system, so far as the borough of Brooklyn is concerned, operates to restore the provisions of the original Greater New York charter in regard to the appointment of magistrates in the territory in question; and (3) the demurrer to the answer of the four respondents herein, on the ground that it was insufficient in law upon the face thereof, was properly overruled. There is another question discussed in the briefs, the determination of which does not- seem essential upon .this appéal, inasmuch as it does not affect any of the respondents now before the court. Section 1401 of the Greater New York charter (as amd. by Laws of 1901, chap. 466) provides that “ No person shall be appointed to the office of city magistrate unless he shall have been admitted to practice as an attorney and counselor at law in the courts of this State at least five years prior to the date of such appointment, unless he was a police justice in office on the first day of January, eighteen hundred and ninety-fivé.” It is said that three of the defendants in • this action, Messrs. Ingelsoll, Devoy and Brennan, are not lawyers of the requisite standing, and hence were hot eligible for election, As neither of these gentlemen is a respondent hére, and as there appears to be no question about the qualification in this respect of the persons who are respondents, it is unnecessary now to express any opinion upon the point; For the foregoing reasons, I advise an affirmance of the- interlocutory judgment appealed from. — 529 — Jenks, J., concurred ; Woodward, J., concurred in result in separate opinion ; Goodrich, P. J., and Hirschberg, J., dissented, each reading opinion for reversal.