# Matter of Marburg v. Cole

> New York Court of Appeals · July 29, 1941 · 286 N.Y. 202

URL: https://www.frixlaw.com/law-library/cases/3599208

## Case

- **Full name:** In the Matter of Otto Marburg, Respondent, Against Ernest E. Cole, as Commissioner of Education of the State of New York, Et Al., Appellants
- **Court:** New York Court of Appeals
- **Decided:** July 29, 1941
- **Citations:** 286 N.Y. 202; 36 N.E.2d 113; 136 A.L.R. 734; 1941 N.Y. LEXIS 1430
- **Precedential status:** Published
- **Opinion:** Dissent by Desmond
- **Judges:** Finch, Desmond
- **Cited by:** 113 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3599208

## Opinion text

Desmond,. J.
(dissenting). If petitioner had submitted to the Regents only letters from “ friends, former students and associates ” showing " that he had attained their respect and esteem as a medical teacher and practitioner,” he would of course have no case at all. What he did submit was evidence from a number of American physicians, each of unquestioned eminence, that he was “ the leading neuropathologist of Europe; ” that
“
people flocked to Mm from every country in Europe; ” that Ms name was “ one of the most important in Europe; ” that there is "no greater figure in the medical world; ” that " almost every neurologist the world over had studied under him; ” that he has the " respect of the world-wide medical profession ” and is " unquestionably the most prominent of recent emigres,” and had been the teacher of most of the prominent neurologists of America. None of tins is disputed in any way whatever. The opimons of these physicians who thus certify to petitioner’s eminence are not assailed. Indeed, in view of the positions held by them in their profession, successful assault would be impossible. As against the sufficiency of tMs proof, defendants now assert that petitioner has failed to meet a standard, unrevealed till now, wMch limits the coverage of the words of the statute: " position of conceded eminence and authority in Ms profession ” to persons who have made original discoveries in the field of
*215
medicine. We need not now decide whether such a limitation would be arbitrary, since respondents themselves show that not all of the persons whose licenses they have indorsed under section 1259 have made any such discoveries. In other words, there is no showing of the adoption of any standard other than the plain language of the statute. When, by a wealth of proof unanswered and presumably unanswerable, petitioner showed his
“
conceded eminence and authority ” defendants went far outside the bounds of their broad discretion in denying his application. We are not here letting down any bars or making possible any great inrush of emigre physicians. We are merely applying the plain words of the statute in one of the very rare situations in which it can apply.
The order should be affirmed.
Loughran, Rippey, Lewis and Conway, JJ., concur with Finch, J.; Desmond, J., dissents in opinion in which Lehman, Ch. J., concurs.
Orders reversed, etc.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3599208. Public record. Not legal advice.