People v. Malmud
| Court | New York Supreme Court Appellate Division |
| Writing for the Court | NOLAN |
| Citation | 164 N.Y.S.2d 204,4 A.D.2d 86 |
| Decision Date | 03 June 1957 |
| Parties | The PEOPLE of the State of New York, Appellant, v. Theodore MALMUD, Respondent. |
Page 204
v.
Theodore MALMUD, Respondent.
Page 206
[4 A.D.2d 88] Edward S. Silver, District Atty., Brooklyn (David Diamond, Brooklyn, of counsel), for appellant.Theodore Malmud, Brooklyn, respondent in person.
William S. Lebwohl (Meyer Scheps, Lewis L. Delafield, Barent L. Visscher, New York City, of counsel), for Triborough Bridge and Tunnel Authority, amicus curiae.
NOLAN, Presiding Justice.
Respondent's motion to dismiss the information against him on the ground that it 'fails to state a prima facie case of the commission of a crime' by him has been treated as a demurrer by the Court of Special Sessions, and the order granting the motion provides that the 'demurrer be, and the same hereby is sustained'. It may be doubtful that the order is subject to review as 'a judgment for the defendant, on a demurrer' (Code Crim.Proc. § 518, subd. 1). Whether it is or is not such a judgment is immaterial, however, since it is in any event an order of the court dismissing the information on a ground other than the insufficiency of the evidence adduced at a trial and is, consequently, appealable pursuant to the provisions of subdivision 3 of section 518 of the Code of Criminal Procedure. N.Y.City Crim.Courts Act, § 31, subd. 4; People v. Hammerstein, 150 App.Div. 212, 134 N.Y.S. 730; People v. Firth, 157 App.Div. 492, 142 N.Y.S. 634.
Respondent was charged with a willful violation of section 3 of article 4 of the rules adopted and promulgated by the Triborough Bridge and Tunnel Authority for the regulation of the use of its project at the Brooklyn Plaza of the Brooklyn Battery Tunnel, in that he failed to obey and comply with the directions given by a bridge and tunnel officer, then directing traffic at said place, and refused to proceed into the proper traffic lane when directed to do so by the officer.
Page 207
The rule alleged to have been violated requires all persons upon vehicular crossings controlled by the Authority to comply with lawful orders and directions given by employees of the Authority, and was promulgated pursuant to subdivision 5 of section 553 of the Public Authorities Law, which empowers the Authority 'To make by-laws for the management and regulation of its affairs, and subject to agreements with bondholders, rules for the regulation of the use of the project and the establishment and collection of tolls thereon' and provides that [4 A.D.2d 89] 'Violation of such rules shall be a misdemeanor punishable by a fine of not exceeding fifty dollars or by imprisonment for not longer than thirty days, or both'.The learned Court of Special Sessions dismissed the information, holding that the above-quoted statutory provision constitutes an unconstitutional delegation of legislative authority (N.Y.Const. art. III, § 1) in that it authorizes the making of rules having the force of law by the bondholders and the Authority, and not in accordance with the independent judgment of the Authority, and that a defendant charged with a misdemeanor for violating such rules would actually be charged with a violation of an agreement, and not with the breach of any prescribed rule of conduct laid down by the Legislature or a duly authorized public agency.
We are unable to agree with that construction of the statute, which gives to the Authority alone the power to adopt rules, and does not provide or require that the rules made by the Authority shall be approved by the bondholders. Other provisions of title 3 of article 3 of the Public Authorities Law clearly indicate that the agreements with the bondholders referred to in section 553 are those made by the Authority, or by the State, for the protection of the financial security of the holders of bonds of the original or the consolidated authorities and that they have nothing to do with the regulation of traffic on the project under the Authority's control. See Public Authorities...
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...of Hanson v. Griffiths, 204 Misc. 736, 124 N.Y.S.2d 473; City of Buffalo v. Stevenson, 207 N.Y. 258, 100 N.E. 798; People v. Malmud, 4 A.D.2d 86, 164 N.Y.S. 204; People v. Brooklyn Garden Apts., 283 N.Y. 373, 28 N.E.2d 877; Fox v. Kern, Sup., 12 N.Y.S.2d Significant also is that the legisla......
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...462, 463, 466, 171 N.E. 708, 709; People ex rel. Jordan v. Martin, 152 N.Y. 311, 316-317, 46 N.E. 484; People v. Malmud, [47 Misc.2d 4] 4 A.D.2d 86, 91-92, 164 N.Y.S.2d 204, 209; Wirtz v. Lobello, 1 A.D.2d 416, 418, 151 N.Y.S.2d 474, 476; Matter of Calfapietra v. Walsh, 183 Misc. 6, 7, 49 N......
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Wickham v. Levine
...462, 463, 466, 171 N.E. 708, 709; People ex rel. Jordan v. Martin, 152 N.Y. 311, 316-317, 46 N.E. 484; People v. Malmud, [47 Misc.2d 4] 4 A.D.2d 86, 91-92, 164 N.Y.S.2d 204, 209; Wirtz v. Lobello, 1 A.D.2d 416, 418, 151 N.Y.S.2d 474, 476; Matter of Calfapietra v. Walsh, 183 Misc. 6, 7, 49 N......
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...253 N.Y. 462, 463, 466, 171 N.E. 708, 709; People ex rel. Jordan v. Martin, 152 N.Y. 311, 316-317, 46 N.E. 484, 485; People v. Malmud, 4 A.D.2d 86, 91-92, 164 N.Y.S.2d 204, 209-210; Wirtz v. Lobello, 1 A.D.2d 416, 418, 151 N.Y.S.2d 474, 476; Matter of Calfapietra v. Walsh, 183 Misc . 6, 7, ......
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...13 N.Y.2d 277, 281, 246 N.Y.S.2d 608, 196 N.E.2d 251, compare Darweger v. Staats, 267 N.Y. 290, 306, 196 N.E. 61, and People v. Malmud, 4 A.D.2d 86, 164 N.Y.S.2d 204, with People v. Ryan, 267 N.Y. 133, 195 N.E. 822). The United States Supreme Court has 'The statute under which it (the sente......