Peyser, Sanford A.

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St. John's University School of Law

St. John's Law Review Volume 19 Number 1 Volume 19, November 1944, Number 1 Article 19 July 2013 Resume of Opinions by the Attorney-General of the State of New York Sanford A. Peyser Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation Peyser, Sanford A. (1944) "Resume of Opinions by the Attorney-General of the State of New York," St. John's Law Review: Vol. 19 : No. 1 , Article 19. Available at: https://scholarship.law.stjohns.edu/lawreview/vol19/iss1/19 This Recent Development in New York Law is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact selbyc@stjohns.edu. RESUME OF OPINIONS BY THEATTORNEY-GENERAL OF THE STATE OFNEW YORK"In recording the page of law to be drawn from recent opinionsof the Attorney-General, the continuing effort to adopt the law ofpeace to war needs stands out. The impact of the war is felt even infields seemingly beyond its influence, such as guardianship and adop-tion and highway control. Survey finds a rich vein of thought inadvanced views on criminal law, while progressive views for the regu-lation of vitamin sales, for the use of photostats, and for an attorney'ssecuring of a broker's license, keep the courts abreast of the times.The war opinions deal with aspects of such current problems as thecare of children of enlisted folk or war-workers, decisions relating tothe serviceman's right to vote, and also the relaxation of rules con-cerning depositions. All these give testimony that the Attorney-General is attempting to cope with the difficulties of war.As for the care of children of warriors and war-workers, theState War Council, which is the machinery employed, is allowed afree hand in spending, and may not only allocate the money to locali-ties but may expend funds directly, particularly where the localitydoes not act, and where the need is great.2 In securing to service-men the right to vote, controversial issues have been settled. Per-sons receiving a Blue Discharge from the Service, which is neither anhonorable nor a dishonorable one, are barred from the war ballot andmay vote only as civilians.3  In furtherance of the campaign againstdivulging military information, it has been decided that, since publica-tion of military unit addresses of servicemen is not essential in obtain-ing a war ballot, the information will not be published.4 The warballot is also denied to members of the Merchant Marine on theground they are not part of the Military Forces of the United States,to whom the war ballot is limited by the State Constitution." Ab-sentee registration is denied civilian federal employees by Constitutionand statute.6 The courts themselves have relaxed many regulationsto fadilitate the conduct of the war. Thus, a plaintiff in a divorce'Opinions rendered by Hon. Nathaniel L. Goldstein, Attorney-General ofthe State of New York.2 WAR EMERGENCY ACT § 7(5-9a); STATE FINANCE LAW §§ 11, 53, 121:STATE DEPARTIMENTS LAW § 134; 42 U. S. CODE, C. 9, subchap. III (6/22/44).3N. Y. CONsT., Art. III, § 4; ELECTION LAW, Art. 12, as added by L.1944, c. 183; id. c. 151 (Inf. op. 5/20/44).4 ELECTION LAW, Art. 12, §§ 300, 302, 305, 316 (6/14/44).5N. Y. CONST., Art. II, §2; N. Y. WAR BALLOT AcT; 14 U. S. CODF § 1(7/20/44).6 N. Y. CoNsr., Art. II, §§ 1, 2, 5; 8 U. S. CODE § 501; N. Y. ELECTIONLAW §§ 117-122, 153-a, 302(3) (6/21/44).ST. JOHN'S LAW REVIEWaction who is in military service may be allowed to give testimony bydeposition even if he is within continental United States, and the casemay be reserved for the duration on the military suspense calendar.-Time requirements have also been adopted to a society at war. Boththe twenty-four hour waiting period between acquisition of a marriagelicense and ceremony, and the three-day period between a seriologicaltest and ceremony, may be waived for servicemen, but in the secondcase additional proof is required that the public interest will be pro-moted, or that delay will work irreparable injury or great hardship.8In the same spirit of liberality, transportation privileges, indispensablein war, are accorded the Services. The right to free passage on tollbridges is granted to members of the New York Guard in the courseof military duty. 9 A measure in the transformation from a peacetimeto a wartime society is the holding that the title of temporary localelective officers replacing regular officeholders away in the service,should reveal the nature of the incumbency.' 0Many opinions in criminal law yield ripe fruit for our harvest.Vital social problems are decisively dealt with, such as the characterof escape and rescue, apportionment of quotas to institutions, inspec-tion of records of youthful offenders and consent to operations onchild inmates.The rule is reiterated, as to the New York State VocationalInstitution, that escape therefrom is a crime of the same seriousnessas that for which sentence had been imposed. If that offence was afelony, the escape is, too, and if a misdemeanor, the escape is of thesame character. Indictment for the escape must state the characterof original sentence." As to the records of those tried as youthfuloffenders under Section 252(c) of the Code of Criminal Procedure,the social interest requires that the State Police simply be entitled toknow as of right that they were so tried, and inspection of the recordmay be permitted only in the discretion of the court.12  Passing onan issue impact with social significance, the Attorney-General ruledthat consent to a major surgical operation on a child inmate may begiven by the Superintendent of a state training institution if the child'shealth would otherwise be seriously jeopardized, and where there isno parent available for consent. 3 The method of apportioning in-mates to institutions under the statute is illustrated in the determina-tion that quotas for admission shall be set up by the Department ofSocial Welfare based upon the ratio of each county to the state popu-lation. These quotas are for the guidance of judges and other com-initting institutions.147 CIv. PRac. ACT § 288 (Inf. op. 7/10/44).8 DOMESTIC RELATIONs LAW §§ 13-a, 13-b, 13-c (Inf. op. 4/25/44).9 MIr.ITARY LAW § 237, as amended by L. 1944, c. 326 (5/27/44).1OWAR EMERGENCY ACT, Art. X-A (105-b) (Inf. op. 6/20/44).11 PENAL LAW §§ 1690-1694 (Inf. op. 7/3/44).12 CODE OF CRIMINAL PROCEDURE §§ 252-b, 252-c (5/16/44).13 SOCIAL WF.LFARE LAW §§ 419, 429. (Inf. op. 7/6/44).14 SocIAL WF.A.rARE LAW §§ 411, 422(3), 427(2) (Inf. op. 7/12/44).[ VOL. 191944 ] OPINIONS BY ATTORNEY-GENERAL 83In a closely related field which is of equal social concern, that ofhospital administration, the trend is toward guarding the interest of thepatient. Thus it has been held that, under the 1944 amendment tothe County Law, the Superintendent of a county tuberculosis hospitalno longer has an option to return an indigent patient to the county ofhis settlement. He may, as formerly, only collect from that countyfor his maintenance. 5 Concerning the increasingly popular vitaminproducts, the Attorney-General has held that such are drugs, and theirsale is restricted to pharmacies, drug and registered stores.'6 Thelaw progresses with the arts in the holding that a photographic rep-resentation is to be accepted as an original, so that a record aging andlosing its usefulness may be replaced by the photostat and discarded.17The judicial attitude of watchfulness in guarding the rights of infantwards is illustrated in recent opinions on guardianship and adoption.In this spirit it is held that a guardianship arising by parents' surren-der under Section 384 of the Social Welfare Law, may not be trans-ferred to another authorized agency, even with the parents' approval.The duties of guardianship are too personal to be delegated under thelaw.'" This attitude also impels the courts to require that the for-realities in adoption be strictly complied with despite wartime stress.The requirements that the parties personally appear and acknowledgethe order before the judge, may not be relaxed even for members ofthe Armed Forces. However, as a last resort, when public interestfavors indulgence, the question may be passed on by the court whenit is raised by refusal of the Health Department to issue a new birthcertificate; 19 also routine publication of birth information in news-papers or even by a private business may not be prohibited by ruleof the Public Health Council, since such a rule would violate thepolicy of Article 20 of the Public Health Law. Regulation of birthcertificates by the State Commissioner of Health must conform withthe statutory policy; the only test of the statute is the propriety of thepurposes of publication and it cannot be said, as matter of law, thatthese purposes are improper.2 0Everyday local government in county and town would seem toocommonplace for noting, but order, enlightenment and fresh viewpointproduces law worth attention. The dominating principle governingthe use of town property for other than town purposes is that suchuse must be compensated. On this condition, rental by local waterand school districts is permitted, but private cemeteries are not sofavored. This would be the use of public property for a privatepurpose. 2 ' On the other hand, the use of county property by towns15 COUNTY LAW § 40-a, as amended by L. 1944. c. 693 (Inf. op. 6/22/44)18 EDUCATION LAW § 1350(15) (6/22/44).17 PUBLIc OFFIcERs LAW § 65-a (5/24/44).is SOCIAL WELFARE LAW § 384 (Inf. op. 5/26/44).19 DOMEsTic RELATIONS LAW § 112(1, 5) (6/14/44).20 PuBLIc HEALTH LAW, Art. 20. §§ 370, 389, 391 (4/20/44).21 N. Y. COXST.. Art. VIII. § 1: HIGHWAY LAW §§ 141, 142 (Inf. op.6/5/44).ST. JOHN'S LAW REVIEWdepends on whether it is authorized by act of the legislature. Sincenone can be found which sanctions the construction of concrete pipeby county highway employees for maintenance of town highways, suchconstruction and sale is illegal. 22  Policy and necessity require that,under the statute, a city be permitted to assist a town in fighting afire. However, responsibility for fire protection is on the town: itwould be going too far to permit the town to contract with the cityfor such protection.23Marking the limits of the spheres of proper action of state andfederal governments is difficult. One marker fixing the boundary isthe ruling that the state may properly regulate the prices charged byspeculators of railway tickets. Here is no attempt to fix the pricesof interstate transportation, but only the purely local function of con-trolling the sale of tickets at prices higher than the carrier charges.24The workings of the state machinery for flood control are broughtinto clear relief in an opinion published June 7, 1944, whereby theSuperintendent of Public Works prepares a master map showingproperties in which the required easements are sought, and then thatchart is used as a basis for appropriations. It is held that the mapmust expressly reserve to the owner all non-interfering interests anduses which are not appropriated. 25 In the past, the right of an attor-ney to deal as a real estate broker had been veiled in obscurity. Therule is now definitely promulgated that an attorney may obtain a realestate broker's license without examination if he is in good standing;however, he is not so privileged, if he is in the real estate business. 26SANFORD A. PEYSER.22 COUNTY LAW § 3 (Inf. op. 5/12/44).2 3 ToWN LAW §§2, 114, 184; GEN. MUN. LAW §209(1,2) (Inf. op.5/19/44).24 PEAL LAW § 1574 (Inf. op. 6/8/44).25 L. 1936, c. 862, as amended (Inf. op. 6/7/44).26 REAL PROPERTY LAW § 442-f (Inf. op. 5/18/44).IVOL. 19

Resume of Opinions by the Attorney-General of the State of New York

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Resume of Opinions by the Attorney-General of the State of New York

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