Patrolmen's Benev. Ass'n of City of New York, Inc. v. City of New York

• Decision Date: 14 January 1971
• Citation: 27 N.Y.2d 410,318 N.Y.S.2d 477
• Parties: , 267 N.E.2d 259, 76 L.R.R.M. (BNA) 2634, 65 Lab.Cas. P 52,511 PATROLMEN'S BENEVOLENT ASSOCIATION OF the CITY OF NEW YORK, INC., et al., Respondents, v. CITY OF NEW YORK, Appellant. CITY OF NEW YORK, Appellant, v. PATROLMEN'S BENEVOLENT ASSOCIATION OF the CITY OF NEW YORK, INC., et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 477

318 N.Y.S.2d 477

27 N.Y.2d 410, 267 N.E.2d 259, 76

L.R.R.M. (BNA) 2634,

65 Lab.Cas. P 52,511

PATROLMEN'S BENEVOLENT ASSOCIATION OF the CITY OF NEW YORK, INC., et al., Respondents, v. CITY OF NEW YORK, Appellant.

CITY OF NEW YORK, Appellant, v. PATROLMEN'S BENEVOLENT ASSOCIATION OF the CITY OF NEW YORK, INC., et al., Respondents.

Court of Appeals of New York.

Jan. 14, 1971.

J. Lee Rankin, Corp. Counsel (John J. Loflin, Jr., Stanley Buchsbaum, Edmund B. Hennefeld, New York City, Beatrice Rothman, White Plains, and Joan Z. McAvoy, New York City, of counsel), for appellant.

Louis Nizer, Charles Ballon, Paul Martinson, New York City, Stuart Linnick, Mt. Vernon, and Norris Wolff, New York City, for Patrolmen's Benevolent Assn. of the City of New York, Inc., respondents.

Murray A. Gordon, New York City, for Uniformed Fire Officers Assn., Local 854, International Association of Fire Fighters, AFL-CIO, respondent.

Leslie Trager, Milton Kunen, Frederick R. Livingston and Paul J. Curran, New York City, for Sergeants Benevolent Assn., Respondent.

David L. Benetar and Stanley Schair, New York City, for Economic Development Council of New York City, Inc., amicus curiae.

Woodson D. Scott, New York City, for New York Chamber of Commerce, amicus curiae.

Julius Topol, Joan Stern Kiok and Bertram Perkel, New York City, for District Council 37, AFSCME, AFL-CIO, amicus curiae.

BERGAN, Judge.

The action is to enforce a purported collective bargaining agreement between the Patrolmen's Benevolent Association and the City of New York for the period October 1, 1968 to December 31, 1970. The complaint alleges the agreement was made January 28, 1969 between the association and the city and that among its provisions was the establishment of a ratio of 3 to 3.5 between patrolmen's and sergeants' salaries to be maintained during the term of contract; that sergeants' salaries were increased by the city December 18, 1969 and that accordingly patrolmen are entitled to an increase conformably to the ratio.

The action is described in the moving affidavit for summary judgment by plaintiff Edward J. Kiernan, president of the association, as 'a simple action for the breach of the salary provisions of a collective bargaining agreement'. Plaintiffs have had summary judgment at Special Term, which has been affirmed by a divided court at the Appellate Division.

The issue on appeal as it reaches this court is whether the existence of a purported integrated agreement is left so uncertain in the record as to require a trial; or whether it appears so clearly that plaintiffs are entitled to summary judgment on the papers without trial.

There is a threshold difficulty as to summary judgment in the form the plaintiffs have chosen to plead the contract terms and to formulate their motion for judgment. A party seeking judgment on the basis of a writing must show the writing he relies on is the writing agreed to. But the text of agreement pleaded in the complaint and recited in the moving Kiernan affidavit is the text of a descriptive circular sent by the association to its members February 3, 1969 to be voted on.

The text of this circular is not shown to have been accepted by the city; and the initialed agreement relied on by plaintiffs in this court as showing there had been a written contract was expressed in a different text. In an action based, as this one is, on a specific writing, summary judgment ought not be granted on showing a different writing, even though the two texts have similarity, without appropriate amendment of pleading and proof to conform the basis for relief claimed to the actual writing relied upon.

There is a more fundamental obstacle to summary judgment here. Not any of the papers or writings in the record, signed or unsigned, show a complete collective bargaining agreement between the association and the city embracing all the terms and conditions which had been canvassed by negotiators.

There is a writing initialed on January 29 by a representative of the association and of the city which shows an accord on some terms, including the ratio with sergeants' salaries, but both in what it says and what it covers it is not a complete or independent collective bargaining agreement. This is the specific instrument which plaintiffs in this court say is an independently enforceable agreement on which they are entitled to summary judgment.

The affidavit of Herbert L. Haber, Director of Labor Relations of the city, who handled the negotiations with the association and who initialed the January 29 accord, filed in opposition to plaintiffs' motion for summary judgment, states not only that there was 'no written collective bargaining agreement' between the association and the city as of May 7, 1970, but that for the preceding year 'the parties (including the association and city) have been attempting to set forth the terms of the entire agreement in a formal written collective bargaining contract.'

He swore further that in the fall of 1969 the association had submitted 'a proposed draft of a written contract'. On the motion for summary judgment these statements must be accepted as true and they require a trial on the issue whether it was the intention of the parties to integrate their preliminary understandings and accords reached in the course of negotiation into a formal and final writing covering the full contractual relation.

The issue, then, is whether it was the intention of the parties that the accord as to part of the subjects of negotiation should become an independent agreement; or whether it was intended, as the Haber affidavit indicates, there should be further and ultimate formalization in writing. The Restatement notes that 'An agreement is integrated' when the parties adopt a writing or writings 'as the final and complete expression of the agreement' (Restatement, Contracts, § 228). The draft of Restatement, Second ( § 235, subd. (3)) broadens this somewhat but is in the same sense. On the showing made on this record the question whether there has been integration here is a question of fact.

The decisional law in New York is consistent with this. In Scheck v. Francis, 26 N.Y.2d 466, 311 N.Y.S.2d 841. Chief Judge Fuld wrote for the court that 'if the parties to an agreement do not intend it to be binding upon them until it is reduced to writing and signed by both of them, they are not bound and may not be held liable until it has been written out and signed' (pp. 469--470, 311 N.Y.S.2d p. 843.).

In such a situation, as Presiding Justice Botein noted in Brause v. Goldman, 10 A.D.2d 328, 199 N.Y.S.2d 606, affd. 9 N.Y.2d 620, 210 N.Y.S.2d 225, 172 N.E.2d 78, the 'necessary finality of assent is lacking' (p. 332, 199 N.Y.S.2d p. 611). (See, also, Schwartz v. Greenberg, 304 N.Y. 250, 107 N.E.2d 65, and Harvey v. General Cable Corp., 1 A.D.2d 79, 147 N.Y.S.2d 380, affd. 2 N.Y.2d 986, 163 N.Y.S.2d 600, 143 N.E.2d 339.)

Corbin regards this kind of situation as typically presenting a question of fact, i.e., where the parties have 'the understanding during this process (settling some details) that the agreement is to be embodied in a formal written document'. (1 Corbin, Contracts, pp. 97, 98.)

If there are conditions which are regarded as important still left for adjustment it may be held that there has been no enforceable agreement. In Arliss v. Herbert Brenon Film Corp., 230 N.Y. 390, 130 N.E. 587, Judge Hogan, writing for the court, was of opinion that the evidence disclosed an intention that a contract...