Peters v. New York City Housing Authority, 307 N. Y. 519, 121 N. E. 2d 529 (1954); Hutchins v. McGoldrick, 307 N.Y. 78, 120 N.E. 2d 335 (1954) (two cases)

Cooney, John J.

English

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Buffalo Law Review Volume 4 Number 1 Article 12 10-1-1954 Administrative Law—Statutory Construction John J. Cooney Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Administrative Law Commons Recommended Citation John J. Cooney, Administrative Law—Statutory Construction, 4 Buff. L. Rev. 29 (1954). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol4/iss1/12 This The Court of Appeals Term is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. THE COURT OF APPEALS, 1953 TERMsuoh minimum figures was arbitrary and out of harmony with theexpressed statutory mandate to tax only that portion of the re-ceipt properly attributable to business done within the state.In Claim of Gold,41 the State Industrial Commissioner's regu-lations for the ascertainment of gratuities includable in employeeremuneration for the purpose of computing unemployment insur-ance benefits were found defective.2 In consonance with the stat-utory mandate 3 of formiulating and promulgating all regulationsnecessary to carry out the Unemployment Insurance Law," theCommissioner declared that determination of the amount of gra-tuities earned by hotel chambermaids would be made by means ofthe filing by the chambermaids of a signed statement of the amountso received with her employer, after having been duly notified ofsuch requirement by the employer. If no such statement shouldbe filed, the amount of gratuities should be deemed to be "nil".In the instant case, the chambermaid's employer did notnotify her of this requirement and she submitted no statement ofgratuities. Hence when she applied for unemployment insurancebenefits, she discovered that the $400 in gratuities she had infact received over the time in question were excluded from thecomputation of her benefits, even though she worked in a hotelknown to be one of the type where tipping of chambermaids iscommon (the so-called American Plan hotels). The court decidedthat in view of the mandatory duty imposed upon him by § 5174rto determine the amount of gratuities, it was unreasonable andarbitrary for the Commissioner to penalize the employee by in-voking a presumption that such gratuities were nil where he haddone nothing more to determine the fact than to instruct the em-ployer to do so, and the latter had in fact failed to do so.Statutory ConstructionIn two cases, the Court of Appeals was called upon to construeFederal statutes in regard to housing. In Peters v. New York City41. 307 N. Y. 224. 120 N. E. 2d 799 (1954).42. § 517 of the Labor Law, defining remuneration to employees, includes as suchremuneration gratuities received by employees in the course of their work. Hencesuch gratuities are includable for purposes of computing unemployment insurance benefitsunder §590 (2). The employer is therefore obligated to include the amount of suchgratuities in his' payroll for the purpose of ascertaining the amount he is required tocontribute under § 570(1).43. LABOR LAw § 530(1).44. LABOR LAw Art. 18.45. "Where gratuities are received by an employee in the course of his employ-ment from a person other than his employer, the value of such gratuities shal be de-termined by the commissioner and be deemed and included as part of his remunerationpaid by his employer." [Emphasis added.]BUFFALO LAW REVIEWHousing Authority,, the so-called Gwinn Amendment4 7 to theUnited States Housing Act of 193748 was involved. That enact-ment amended the Housing Act to provide that "no housing unitconstructed under the United States Housing Act of 1937, asamended, shall be occupied by a person who is a member of anorganization designated as subversive by the Attorney General:Provided further, that the foregoing prohibition shall be enforcedby the local housing authority." In accordance with the latterdirective, the New York City Housing Authority issued the fol-lowing resolution: "No applicant shall be admitted to, and notenant shall be permitted to continue to reside in . . . a federallyaided project" unless the applicant should sign a certificate to theeffect that he is not a member of an organization designated by theAttorney General as subversive.Petitioners brought an action to annul this requirement andit was granted in the first instance on the ground that the resolu-tion was arbitrary, capricious and unreasonable and violated dueprocess in that the proscribed organizations were placed on theAttorney General's list without benefit of hearing.49 The Appel-late Division modified by striking the petition for relief, holdingthat, since affected organizations were at the present time beinggiven hearings, the constitutional argument was no longer ten-able. 0 'The Court of Appeals held that the constitutional ques-tion could not then be decided, under the doctrine that courts willnot pass on the constitutionality of acts of legislatures until suchaction becomes absolutely necessary." Instead, two non-constitu-tional grounds were found on which to base the decision. TheFederal statute apnlied only in the case of housing units con-structed under the United States Housing Act, not, as intimated bythe resolution, to federally aided projects. Though it was admit-ted that the units in question were built partially with Federalfunds, it. had not been determined whether they were built underthe Housing Act; until this determination was made, it could notbe determined whether the Gwinn Amendment applied. The sec-ond ground was that the Housing Authority resolution requirednon-membership in all organizations on the Attorney General's46. 307 N. Y. 519, 121 N. E. 2d 529 (1954).47. 66 STAT. 403 (1953), 42 U.S.C.A. § 1411c.48. 50 STAT. 888 (1937) as amended, 42 U. S. C. A. § 1401 et seq.49. Peters v. New York City Housing Authority, - Misc. _, 128 N. Y. S.2d 224 (1953).50. Peters v. New York City Housing Authority, 283 App. Div. 801, 128 N. Y. S.2d 712 (1954).51. Rescue Army v. Municipal Court of Los Angeles, 331 U. S. 549 (1947), Lyn-brook Gardens v. Ullman, 291 N.Y. 472, 53 N.E. 2d 353 (1943).THE COURT OF APPEALS, 1953 TERMlist, not merely those described as "subversive" 52 as provided bythe Gwinn Amendment.In Hutchins v. McGoldrick, the de-control provisions of theState Residential Rent Lawv5 came into question. In each of thetwo cases property was involved which had been converted to resi-dential property after Feb. 1, 1947 and before May 1, 1950. Sec-tion 2(2) of the Rent Law defines "housing accommodation" andexcepts from that classification a number of accommodationsamong which is the following:(g) housing accommodations . . . which are . . (2)additional housing accommodations created by conversion onor after Feb. 1, 1947; provided, however, that any housingaccommodation created as a result of any conversion . . . onor after fay 1, 1950 shall continue to be subject to rent controlas provided herein unless the commission issues an order decon-trolling them which it shall do if there has been a structuralchange involving substantial alterations or remodeling; andsuch change has resulted in additional housing accommodationsconsisting of self-contained family units as defined by regula-tions issued by the commission . .."Self-contained family unit" is defined as a "housing accommo-dation with private access, containing one or more rooms in addi-tionto a kitchen . . . and a private bathroom."155The apartments created - by conversion in the first case didnot contain private bathrooms and those in the second case cameabout as a result of very minor structural changes. The apart-ments in both cases had been under Federal rent control prior toMay 1, 1950.5(In a strictly literal reading of the State control law, the ma-jority of the Court of Appeals, speaking through Chief JudgeLewis, decided that the accommodations in question were exemptfrom control as falling within the first clause of section 2(g) (2),since they had been converted subsequent to Feb. 1, 1947 and priorto May 1, 1950. The fact that these premises had been underFederal rent control was held to be immaterial, on the groundthat the State law was complete in itself and made no reference in52. The list included six categories: Totalitarian; Fascist; Communist; Subver-sive; Organizations which have 'adopted a policy of advocating or approving the com-mission of acts of force and violence to deny others their rights under the Constitutionof the United States'; and Organizations which 'seek to alter the form of Governmentof the United States by unconstitutional means' 5 CODE FED. RGs., APP. A, p. 203.53. 307 N.Y. 78, 120 N.E. 2d 335 (1954) (two cases).54. L. 1946, c. 274, as amended by L. 1950, c. 250, McK. UNCONSOL. LAWS § 8581et seq.55. McK. UNCONSOL. LAWS, APPENDIX § 11.56. 61 STAT. 193 (1947) as amended, 50 U. S. C. A. § 1891 et seq.BUFFALO LAW REVIEWthis connection to the Federal act which had controlled up to April30, 1950. Judge Conway, with whom Judge Van Voorhis con-curred, dissented, pointing out that the Legislature had declaredthat its intent in passing this statute was to control those sameaccommodations which had been governed by the Federal law. 7It was also pointed out that the purpose in exempting convertedhousing accommodations from rent control in both the State andFederal acts was to encourage such conversions to alleviate thehousing shortage; but that the Federal act manifested an inten-tion to exempt only those accommodations which constituted self-contained family units,55 and that decontrolling units under theState act which do not meet these standards is a violation of theLegislature's expressed intent to keep under control those accom-modations which were controlled by the Federal act.It would seem that the exactly literal reading of the Statecontrol statute has resulted in a frustration of the intent of theLegislature to afford a smooth changeover from Federal to Statecontrol. A reading of the statute in par materia with that whichit is designed to succeed would seem the more warranted pro-cedure.Scope of Reviewa. Forms of review: Under C.P.A., Article 78, the classifica-tions and forms of the writs of certiorari to review, mandamus andprohibition have been abolished.5 9 However, in adjudicating reliefin Article 78 proceedings, these forms are still relevant in deter-mining the type of relief to be granted.60In Gimprich v. Board of Education of City of New York,60 aschoolteacher brought an Article 78 proceeding in the nature ofmandamus to compel the respondent to grant her two years' sal-ary credit for outside teaching experience. The petitioner wouldbe entitled to relief in the nature of a writ of mandamus if therespondent was under a statutory duty to grant such relief.02However, such relief will not be granted if the respondent is vestedwith an exercise of discretion . 357. McK. UNCONSOL. LAWS § 8594(1).58. 50 U.S.C.A. § 1892(c) (3).59. C. P. A. § 1283.60. Newbrand v. City of Yonkers, 285 N.Y. 164, 33 N.E. 2d 75 (1941).61. 306 N.Y. 401. 118 N. E. 2d 578 (1954).62. Strum v. Board of Education of City of New York, 301 N.Y. 803, 96 N.E.2d 192 (1950), Wakefield v. Board of Education of City of New York, 192 Misc. 639, 79N. Y. S. 2d 420 (Sup. Ct. 1948), modified 274 App. Div. 884, 84 N. Y. S. 2d 700 (lstDep't 1948), aff'd 299 N. Y. 664, 87 N. E. 2d 58 (1949).63. People ex rel. Hammond v. Leonard. 74 N.Y. 443 (1878), Hanson v. Teacher'sRetirement Board, 236 App. Div. 589, 260 N.Y. Supp. 481 (1st Dep't 1932), aff'd 262N.Y. 496, 188 N.E. 36 (1933).

Administrative Law—Statutory Construction

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Administrative Law—Statutory Construction

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