Motion to Dismiss or Affirm — George Campbell Painting Corp. v. Reid

7

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gl A I TE IEE - aad 20 — -

_ SUPREME COURT. U. 8B OMleeSupreme Court, V.S.

: : D

ee a ahammar GBT 30 1967

| Supreme Court of the United Mhatems, evn

OCTOBER TERM, 1967

wa : No. 673

Grorce Camppet Partine Corr.,

| Pa Appellant, § |

ates : against } -

: Witu1am Rep, Whisene V. Mapican, Ina S. Rossrys, Mem- |

bers of the New York City Housing Authority, and THe

_ New York Crry Hovsine AvTHostrr,

Appellees.

| | GzorcE CaMpBELE.Parntine Corp., |

= Appellant,

against ee

Witu1aM Rep, Francis. V. -Manican, Ira S. Rossrns,. Mem-.'

bers of the New York City Housing Authority, and THe

New York Crry Hovsine Authority, |

Ri, | Appellees.

MOTION TO DISMISS OR AFFIRM:

: . Harry Levy,

| “Attorney for Appellees,

tt - 250 Broadway,

mo a ' New York, New York 10007.

7 : ~ 433-5015 “> °

_ Of Counsel: .

Pau W. Hesse,

I. Stantey Srem.

é

SN A

<Q 249 Press of Fremont Payne, Inc., 80 Washington St., N. Y.—BOwling Green 9-8153

Ta aa .

TABLE OF CONTENTS ou

. ae e . PAGE

Metiak eek Credits «oj. o.oo ccccccccavesccecces. 1

BE POM ioce ced ebeeeen oS Aint Micauaspteaiste ds 2

Argument rsa sieediaesihi ween GY corre Tl uuiecease ae

A Federal Constitutional Question Not Having -

Been Expressly Passed Upon by the State

Court as the Sole Basis for Its Determination,

or Shown by the Record to Ha een Timely

and Properly Raised, ‘This Court Will Not

Assume Jurisdiction of _— Proud cAchnaaes * 12

This Appeal Does Not Present Substantial Fed-

eral Question ...... ore 5 Espen Mele ee Perera 17

A. The determindtion of the New York courts

was predicatéd basically upon other’ than

‘constitutional grounds—state or federal... 17

B. The contractual provisions and their en-

' forcement present no constitutional or fed- ™

,, egal question ¢........0.5. bee eeeeeavnvns 18

C. The alleged deprivation of‘ constitutional

rights was not that of this appellant, and ,

it has no standing to assert them ...... ae

“The Determination Appealed From Not Being ©

Final Within the Meaning of the Judicial Code,

28 U.S.C. Section’1257, This Court Has No

Jurisdiction Over This Appeal ............... 21

In Any Event, the Decision of the State Court |

Appealeg From Is So Manifestly Correct That __

- No Further Argument Thereon Is Necessary 22

SI caw scouseurians Ree Fe ost ek PA pakeach.. ae

ii TABLE OF CONTENTS

TaBLe oF Cases

. PAGE

Atkins v. Kansas, 191 U. S. 207, 222 .-............ 18

Bailey v. Anderson, 326 U. S: 203, 206 ............ 16

Baltimore & Ohio R. Co v. Interstate Com, Com., 221

i es I bcctbn beach Lavewkxeede 20

Bank of Augusta v. Earle, 38 U. S. 517, 596 a 6

Beck v. Washington, 369 U. S. 541, 549-554 ..:..... 16-—

Beilan v. Board of Education, 357 U. S. 399-........ * "gg..

Campbell v. City of ‘New York, 244 N. Y. 317,327... 18

Campbell wage wa, * i og v. William Reid et al., Con-

stituting the New York City Housing. Authority

48 Mise. (2) 544-546 (Article 78° Proceeding) .. 8,10

Campbell Painting Corp. v. William Reid et al. Con.

stituting the New York City Housing Authority

26 A. D. (2) 912 (Injunction Action) .......... 11

Campbell Painting oe v. William Reid et al., Con-

— the ‘New York City Housing Authority

20 N.. Y. (2) 370-377 (Article 78 & Injunction

, Kotla) cecschedaveecavanhevenve wacwsa 3, 11, 13, 21, 23

' Charleston-Assn. v. Alderson, 324 U. S. 182,186 ..... 16

Crane v. New York, 239 U.S. 195...... aeues thaee es 18“

Essgee Co. v. United States, 262. U.S. 151°....... vos “ae

Garrity v. New.Jersey, 385 U. S, 493 .............. 29

Gospel Army v. Los Angeles, 331 U: S. 543, 546 ... 22 .

Hale y. Henkel, 201 U. S. 43, 74,.75 ....... ere 20

Hicklin v. Coney, 290 U. S. 169,172 ...... cia Gkee ean 21.

Hollerbach v.-U. S. 233 U. S. 165, 171 ............ 2

Lerner v. Casey, 357 U. S. 468 ......... 0... eee ees » ° 23°

Lynch.v. New York, 293 U. S. 52.............00000: 14, 16

Market Street Railway Co. v. Commission of Cali-

fornia, 324 U. S. 548, 551 ........ Leete we baeea ei

TABLE OF CONTENTS iii

- ‘

myn Shee BAS PAGE

Matter of Gardner v. Broderick, 20 N. Y. (2) 227... 23

Nelson v. Los Angeles County, 362 U.S.1,7...:.. 23

People v. Crane, 214 N. Y. 154,174 .........:... 2 eee G

Spevack v. Klein, 385 U.S. 511........ aganenaaOnas 22

Uniformed Sanitation Men Association v. Commis-

sioner of Sanitation (—— F. (2) ——-) ........ _ 23

United States ex rel. Laino v. Warden, 246 F. nuoe.

ee 4 Pere eererr er eee A epee 24, 26

United States ex rel. Laino v. Warden, 355 F. (2)

ae ee Ps FONE Rei yrs eS mr ae

Unitd ‘States v. /. White, 322 U.S. 694, 69 retake wes 20

Wilson v. Cook, 327 U.S. 474 ...... aseteua mbes 16

Wilson v.- United States, 221 U.S, 361, 883-385 1... 20

Statutes Crrep

Public Authorities Law, Section 2601 ....3, 4,9, 11, 13,17

Public. Authorities Law; Section 2602 .......... 3, 4, 8, 24

~ Publit Authorities Law, Section 2603 ...4, 6,10, 11, 13, 21

Public. Housing Law, Section eee Siac een oe 17

Judicial Code, 28 U.S.C.,; Section 1257 ........... soe, 21

MISCELLANEOUS -

_ Wigmore on Evidence (McNaughton, Rev. ed. 1961),

Section 2275, v. 8, p. 453.:..... Maperhinl ob opeess : 19 :

Cooley, Constitutional Limitation (8 ed. ), v. 1, pp.

WI 5.0 ook 4 c8' sets 50 4400s advent erveccssees 19

IN THE

Pile Court of the United States

OCTOBER TERM, 1967

'” Ne. 673

7: | . Gzorce.CampseLL Parntine Corp., |

2 iN ~” Appellant,

ae against * ee

Wim Ren, Francis V. ‘Mansain, Tea S. Saini: Mem-

. bers of the New York City Housing Authority, and THE

New York Crry Housine AurHoriry,

7 Appellees.

Grorce CAMPBELL Parntinc Corp., : or kg

| Appellant, _

agamst ©

“Wri Rep, Francis V. Maprcany, Ira S. Rossins, Mem-

bers: of the New York City Housing Authority, and THE

New York Crry. Housine Avutfuonriry,

: Appellees.

y*

7

= ’ MOTION TO DISMISS OR AFFIRM

Motion and Grounds .

Appellees (hereinafter sometimes referred to as the

‘‘Authority’’), hereby respectfully move, pursuant to Rule

16 of the Rules of this Court, that-this appeal be dismissed, ©

or in the alternative, that the order of the Court of Appeals

_ of New York appealed from be on the following

grounds:

1. That this appeal. is ‘not within the emai of

this weasel |

: r

2. That as an appeal from.a state court

(a) it does not present a substantial federal ques-

tion.

(b) the federal question sought to be reviewed was

not timely or properly raised, or expressly

passed on.

(c) the judgment appealed ‘trom rests on an ade-

quate non-federal basis. -

4 That, i in any event, the decision of the state court

involved in this appeal is so manifestly correct that no

further argument thereon is necessary. ;

The F acts

References to the Record in the plenary action wiil be

made as follows: (R.); and to the separate Record

‘ in the Articl® 78 proceeding as follows: (Art. 78 R.).

References to Appellant’s Jurisdictional voeceteees will

be made thus: (Jur. Stat., P.)- .

Appellees respectfully submit aclu. by reférénce to-

the Records, somewhat more of the history, background and

highlights of these litigations than are set forth in Appel-

lant’s Jurisdictional Statement. Upon the basis. thereof .

Appellees propose to demonstrate by its argument helow

that the foregoing grounds for dismissal of this appeal, o} or

for affirmance, are amply sustained. |

1. Each of the three contracts between Appellant corpo-

ration and Appellee Authority described in the Records,

executed on behalf of Appellant by George Campbell, Jr.

/ as its president (R, 35), contained the following =

(R. 36) :

“38. Cancellation and Disqualification for Failure to

Waive Immunity.

Upon the refusal by a person, when wate before a

Grand J ury to testify concerning. any transaction or

3

contract had with the State, any political subdivision

thereof,.a public authority or with any public depart-

ment, agency or official of the State or of any political

subdivision thereof or. of a public authority, to sign a

waiver-of immunity against subsequent criminal prose-

eution or to answer any relevant question concerning

such transaction or’ contract.

A. Such person and any firm, wasticnnalaiin, or corpd

ration of which he is a member, partner, director or

officer shall be disqualified from thereafter selling or

submitting bids to or receiving awards from or entei-

ing into. any contracts with the Authority for goods,

'. work or services, for a period of five (5) inaco after

such refusal, and

B. This Contract and any ‘and all other contracts |

made with the Authority on or after July 1, 1959, by.

- such person and by any firm, partnership or corpo-

ration of which he is a member, partner, diréctor or

officer may be cancelled or terminated by the: Author-

ity, without incurring any penalty or damages on ac-

count of such caneellation or termination, but monies

owing by the Authority, for goods delivered or work.

done prior to the cancellation | or termination shall be

paid.’’ _ |

While such provisions were ner er in all contracts of

public Authorities by Section 2601 of the New York Public

Authorities Law (Jur. Stat., pp. “24-95), it is Appellee’ >

position, as set forth in its argument below, that under the

. powers granted to it by. the New York Public Housing Law

it would have had the right to include these provisions in -

its contracts regardless of the existence of Section 2601. _

2. Section 2602 of the Public Authorities Law (Jur.

- Stat., pp. 25-26) sets forth an alternative provision for.

‘ automatic disqualification from bidding public contracts,

regardless of any action by a. particular public agency

_ under contractual: provisions, of any contractor whose

officer has refused to waive immunity in a specified grand

eee

jury investigation. Such disqualification shall be ‘‘.. . for

a period of five years after such refusal or until a dis-

qualification shall be removed pursuant to the provisions

‘of section twenty-six hundred three of this title’’.

3.. Section 2603 (Jur. Stat., pp. 26-27) provides for a

special. court proceeding whereby the disqualification,

whether imposed by and with respect to a particular public

agency under contractual provisions pursuant to Section

2601, or automatically with respect to all public agencies

pursuant. to the statutory requirements of Section 2602,

may be removed with respect to a ‘‘. - corporation which

had severed its connection with the recuieitrent ‘officer’and

which has otherwise been cooperative’™ (Opinion of New

York Court of Appeals, 20 N. Y. 2d 370, 376; Jur. ‘Stat.,

p. 19.) However, the sole responding parties to such 2603

_ proceeding are to be the Attorney General'and *. . . the

officer who conducted \the. investigation before the grand

- jury. in which the refusah occurred . . .’’ (Jur. Stat., ’

p. 26), the latter, in this instance, being the District At.

torney of New York County.

_ 4 The disqualification of Appellant corporation in ques-

tion herein was set forth in Appellee Authority’s letter of ‘

April 21, 1965 (Exhibit B Annexed to Petition, Art. 78,

R. 20-21), and, as will be noted therefrom, was imposed

wholly ‘‘. . . in accordance with the further provisions of

said Section 38 . . .”’ (of the contracts), as were the cancel-

lation of such contracts. ;

5. Both such cancellation and disqualification ‘were vigor-

’ ously objected .to in a letter of Appellant’s attorneys to

Appellee Authority dated April 23, 1965 (Exhibit C-1

Annexed to Petition, Art. 78, R. 23-26), which adverted to

a previous letter of April 9, 1965 (Exh. C Annexed to Peti-

tion, Art. 78, R, 22), informing Appellee of George Camp-

bell, Jr.’s resignation as an officer and director prior to

his appearance before the Creme ‘Jury: This letter reads,

in part, as follows:

.“‘T direct your attention to Section 38.of the Amend- -

ments to General Conditions entitled ‘Cancellation and

“a A

Disqualification for Failure to Waive Immunity’. It

is a fact that George William Campbell, Jr. refused to

waive immunity at an appearance before a Grand J ury

of New York County on April 14, 1965.

Your attention is directed to Subdivision (a) of Sec..

tion 38, which clearly speaks in the present tense,

: when it refers to the disqualification of the person fail-

ing to waive immunity and in Subdivision (b), it speaks

in the present tense, when it refers to the right of the |

Authority to cancel existing contracts as a result of

the relationship between the person failing to waive

‘immunity and the corporation under contract with the

| Authority.

It is respectfully submitted that if, panes William

Campbell, Jr. resigned as an officer, director and stock- ear

- holder prior to his being.called upon to waive immunity

and prior to his failure to waive immunity, that the

_ provisions of Section 38 have no application and should

' not be applied or enforced by: the Authority, with rela-

tion to any contracts existing between’ the Authority

and George Campbell Painting Corp.’’

- ee 6. Upon the rejection of such letter and a following

telegram (Exh. E Annexed to Petition, Art. 78, R: 27),

¢ Appellant commenced in the Supreme Court of New York

its first litigation in this matter. This was entitled as

fvilows (See Stipulation as to Prior Proceedings, Art. 78,

R. 38-39) :

“In the Matter of the e Application

of

| _ GEORGE Camppece: Parwnixe Corp.,

a Petitioner,

For a Review Pursuant to Article 78 of the Civil.

Practice Law and Rules and Section 103(¢) of the

neuen Municipal Law,

against

= Witam Rem, Francis V. Manican, Ira S. Rossrns,

. members of Tue New Yorx Crry Housine Avutnor-

. -—*

ee ee ee

iry, Tae New Yorx Crry Housine Avtuorrry, Lovis

| J. Lerxowrrz, Attorney General of the State of New

York and Franx S, Hoean, District Attorney of the

County of New York,

Respondents.’’

This litigation is “nowhere mentioned in the Jurisdic-

tional Statement, although by the above. Stipulation (Art.

78, R. 38-39) it is’ expressly made part of the Record

herein. The Petition therein set forth two ‘* proceedings”’

(R. 33-34, 44): first, an Article 78 proceeding against

‘Appellee Authority, and, second, a separate proceeding

against the Attorney General and the District Attorney

‘*... pursuant to Section 103(c) of the General Municipal

Law ..-.’’ (which is-identical with and was intended to refer

to Section 2603 of the Public Authorities Law). :

. at

The Article 78 proceeding attacked the cancellation of —

the contracts and Appellant’s disqualifications on the same

ground of misinterpretation of. the contractual provisions

as was set forth in the letter of Appellant’s attorneys

referred to in Paragraph ‘5° above (Exhibit C-1 Annexed

7 to Petititon, Art. 78, R. 23-26), while the proceeding against

the Attorney General and District Attorney basically set

forth the or of Section 2603 of the Public Au-

thorities Law. |

_ On its own motion Appellant voluntarily discontinued

_ the latter proceeding. The Article 78 proceeding as

against Appellee Authority was thereafter dismissed by

_ Justice Lyman of the New York Supreme Court for failure

‘of Appellant to have filed, as a condition precedent thereto,

a Notice of Claim pursuant to Section 157 of the New York

' Public Housing Law, but with leave to renew (R. 33-34, 44).

.. = .

.7. Thereafter Appellant filed with Appellee Authority

such Notice of Claim, dated July 2, 1965 (Exh. A Annexed

to Complaint, R. 27-30). It will be particularly noted that

o

:

this claim seeks One Million Dollars in damages, the

right to have its contracts reinstated, and the disqualifica-

tion vacated, expressly on the following grounds:

‘«. . . because of the New York City Housing Av- -

thority’s wrongful interpretations and application of

the provisions of the contract entered into by and

between George Campbell Painting Corp. and the New

‘York City Housing’ Authority and the applicable .

statutes. ov

‘“‘The damages, wrongful cancellation of the con-

tracts and wrongful barring of the claimant from

future bidding, for a period of five (5) years were

sustained as a result of the action by The New York

City Housing Authority purportedly pursuant to pro-

visions of the contract and applicable statutes claim-

ing a violation thereof by a member; partner, director -

or officer of the claimant refusing to sign a waiver of

immunity. The New York City Housing Authority in

making the determination’ of cancelling the existing

contracts and barring petitioner from future bidding

for five (5) years for the alleged refusal of George

Campbell, Jr. to waive immunity before the New York

Grand Jury, was a breach of contract and violated the

_claimant’s rights. and was based upon the erroneous

information and/or -interpretation of the aforesaid

contracts and statutes in that the aforesaid George

Campbell, Jr. was no longer an officer, director or

stockholder of ‘the’ petitioner at the time he refused to

waive immunity before the Grand Jury, and, moreover,

was not an officer, director or stockholder at the time a

subpoena was served upon him for his appearance as

aforesaid. .The decision by The New York City

Housing Authority was arrived at despite the fact that

they were informed by letter dated April 9, 1965 that

George Campbell, Jr. was no longer an officer and

director of the corporation. an

The Undersigned, George Campbell Painting Corp.,

claims damages in the sum of One Million

8 nt

($1,000,000.00) Dollars for loss of ‘profits on contracts

they were prevented from obtaining because of said

wrongful determination by The New York City Hous-

ing Authority.’

8. After filing such Notice of Claim, and predicated

thereon, Appellant brought om against Appellee a second

Article 78 proceeding. That is thé proceeding set forth in

the Article 78 Record herein, dismissed by Justice. Tilzer

of the New York Supreme Court without prejudice to\a

plenary suit (48 Misc. 2d 544, 265 N.Y.S. 2d 304; Jur. Stat.

13-15). Once more, and this time .in conformity with the

Notice of Claim upon which it was founded, Appellant’s

Petition therein was based expfessly upon a claim of mis-

interpretation of the contractual,and statutory provisions

in not récognizing the purported resignation of George

Campbell, Jr., and nothing more. Says this Petition, in |

part (Art. 78, R. 14): i |

‘©96. The action by the respondents ... purportedly .

was pursuant to Section 2602 of the Public Authorities.

Law in that the aforesaid respondents thought that the

aforesaid section .had been violated by a member,

partner, director, or officer of the petitioner refusing to:

sign a waiver of immunity. !

‘*27. . . . this action by respondents . . . ‘was an-

abuse of their discretion and was decided arbitrarily

and capriciously, based upon erroneous information

and/or interpretation of the aforesaid section of the

Public Authorities Law.

. *£28, Such acts by the respondents were arbitrary,

capricious and an abuse of discretion in that the afore-.

said George Campbell, Jr. was no longer an officer,

direetor, or stockholder of the petitioner at the time

he refused to waive immunity before the Grand Jury,

and moreover, was. not an officer, director, or stock-

‘holder at the time a subpoena was served upon him |

for his appearance as aforesaid.’’

9

9. After service of Notice of Appeal from Justice Til-

zer’s.order Appellant then commenced the third litigation,

this time the plenary action now a subject of this appeal.

This action was predicated upon the same Notice of Claim

| alleged in tlie Article 78 proceeding, and it was referred

‘to in ‘the. complaint (Complaint, Par. ‘‘20’’, R. 25) and

annexed thereto as an Exhibit (Exh. A Annexed to the

Complaint, R. 27).

10. Accompanying this Complaint were an Affidavit and

Order to Show Cause for an injunction pendente lite (R.

5-10). Once more ‘these were based solely and wholly on

the assertion that Appellee Authority had wrongfully dis-

qualified Appellant corporation by reason of a misinterpre-

tation of tlie contractual and statutory provisions. Says

this affidavit, in part (Affidavit of George Morvan, R. 9):

**17. By letter, hand delivered, én April 23, 1965

(Exhibit ‘D’ annexed hereto), counsel for plaintiff

attempted to disabuse defendants of the numerous fac-

tual errors contained in their notice of disqualifica-

tion, the most significant of which was the fact that

‘the said George Campbell, Jr. was not an officer or

director of plaintiff as defendants’ notice alleged.

18. I am informed by counsel that defendants have

taken the position that under Section 38 of the General

Conditions of the aforesaid contracts between plain-

tiff and defendants. and under Section 2601 of the

Public Authorities Law, so long as George Campbell,

Jr. was an officer or director when the contract was

made, his resignation prior to his refusal to waive

_ immunity is meaningless. a

19. I am_informed by counsel that the eermeee ?

tion placed on the contracts and statute by defendants

is clearly erroneous as the annexed Memorandum of

Law amply demonstrates.”’

&

10

11. From the foregoing it is entirely clear that nowhere

in any of the actual’ records of these three (actually four,

counting the discontinued proceeding against the Attorney

General and District Attorney) litigations brought by Ap--

pellant for ‘relief from - its , disqualification, was the re-

_ motest question raised, or presented to the courts below,

as to the constitutionality of such disqualification, or of

‘the contractual or statutory provisions under which it was -

effected. On the contrary, all that Appéllant sought, and

the sole issue it presented to such courts, was an interpre-

tation of such provisions. And in the first Article 78 pro-.

ceeding it brought before Justice Lyman, Appellant, though

subsequently discontinuing it, initially recognized the ne-

cessity for and validity of a proceeding to obtain the de-

sired relief under Section 2603 of the Public Authorities

~ Law.

12. Not until the third litigation (the plenary action)

was commenced was any mention -whatever made by ‘Appel-

‘lant of ‘‘constitutional problems’’, and then solely by its

attorneys’ brief and not by anything in the record. And

even this was so incidentally, generally and cursorily re-

ferred to as not to present any specific constitutional ques-

tion, state or federal, for, adjudication by the courts (Jur.

- Stat. » P. 6).

13. Not even this much of a ‘pemthiattania’ problem’’

having been raised in the Article 78 proceeding before

him, the opinion of Justice Tilzer therein (48 Mise. 2d

544, 265 N.Y.S. 2d 304; Jur. Stat., p. 13) characterized the

entire basis thereof as ‘follows:

(p. 545)

‘‘Such alleged resignation and divestiture of his

stock interest in the corporation by George Campbell,

Jr. prior to his refusal to waive immunity, appears to

be the basis for this proceeding.”’ .

14. In the plenary action the opinion of Justice bilan

of the New York Supreme Court (Jur. Stat., pp. 16-17),

’

11

. i»

made no felecvany to any. ‘constitutional protien’? And

the opinion of the:Appellate, Division modifying this de-

itermination by dismissing the complaint (26 A. D. 2d 912,

5 'N.Y.S. 2d 365; Jur. Stat., p. 17), is ‘based wholly on

the record, and again without reference to any ‘‘eonstitu-

tional problem’’, as follows:

‘‘The complaint is insufficient because plaintiff is

subject to the contractual agreements it made and be-

cause on the present allegations plaintiff does not

establish a case for equitable relief.’’

15. Although the New York Court of Aupenla: in affirm- |

ing the orders of the Appellate Division, did hold Section

2601 of the Public Authorities Law constitutional, and the

disqualification valid (20 N. Y. 2d: 370, 376; ‘Jur. Stat.,

p. 18), this in itself, as will be shown in the argument below,

does not raise a substantial federal question, or otherwise

_ avoid the grounds upon which this motion is based. Prin-

cipally, it will be noted, the opinion was concerned with the

issues and contentions of the parties tendered by the

record, and sustained ‘Appellees’ position that (a) the pur-

ported resignation was ineffectual to prevent the corpora- ,

tion’s disqualification and (b) that. in any- event the*ex-

clusive remedy to be pursued by Appellant was that *

provided.by Section 2603 of the Public Authorities Law.

(It may be noted, parenthetically, that under the provisions

of that statute this procedure may even now be available

to Appellant.)

16. Finally, the attention of the Court is respectfully

invited to the ‘‘Substantial Federal Question’’ asserted by

Appellant, as follows:

‘“‘The federal question raised is whether the asser:

tion of the constitutional privilege against self-incrimi- —

nation. before the grand jury may, without more, result

in a penalty, automatic disqualification from bidding

on public contracts.’’ (Jur. Stat., p. 8).

12

_ In this connection, it is to be noted that the record shows

that:

(a) The choice of waiving or not waiving immunity

was that of George Campbell, Jr., an individual, and

not of this Appellant corporation.

(b) At the time this individual was faced with such

choice he had assertedly divested. himself not only of J

- his offices, but of every interest in the conyneeiee. v4

(c) Accordingly, the assertion of such privilege by

George Campbell, Jr., was neither ‘‘costly’’ to nor im- ©

posed any penalty upon him, directly or through any

interest he had_in the corporation.

(d) George Campbell, Jr. is and was not at any time

a party to. these litigations, for the very good reason ~ ©

that at the time of the disqualification he was, and is,.

by virtue of such asserted divestiture, legally a stranger

thereto. These proceedings do not involve his dis-

oa qualification. .

(e) “The Genusliteniion of .the. corporation was im-

‘ posed’ pursuant to contractual: provisions to which it

expressly agreed. That such provisions were required

by law makes them nonetheless contractual (See Opin- .

ion of Tilzer, J., Jur. Stat., p. 15). . |

Argument

A Federal Constitutional Question Not Having

Been Expressly Passed Upon by the State Court as

_ the Sole Basis for Its Determination, or Shown by

the Record to Have Been Timely and Properly

mange, This Court Will Not Assume Jurisdiction

‘of This Appeal.

It appears conclusively from the facts set forth above

that nowhere ir the Records of the three successive litiga-_

tions brought by Appellant, two of which are involved in

13 .

this appeal, was any constitutional question of any nature—

federal or state—raised or presented for adjudication by

such courts. From the initial letters of Appellant’s attor-

neys objecting to the disqualification of Appellant by Ap-

pellee Authority, through its Notice of Claim, its Petitions,

Complaint and affidavits, all made part of the Records

herein, Appellant presented solely the question of interpre-

tation ‘of the contractual provisions and statutes in ques-

tion, and no constitutional issue of any nature.

- Appellant’s Jurisdictional Statement (Jur. Stat. , Pp. 6) i in

effect concedes that this to be the ‘case, asserting that solely

by means of its attorneys’ brief in the third litigation (the

plenary action) did it in any way set ferth before the court

of first instance any matter of a constitutional nature. And:

even this statement presented nothing in’ the way’ of a

specific constitutional issue, either state or federal, which

called upon the state courts to make such an express con- -

stitutional adjudication, particularly of a federal nature, as

is required to support the jurisdiction of this Coprt over

this appeal. , \

As further pointed out above, the lower New York Courts.

completely ignored and made no mention of any constitu-

-- tional matter in their decisions. It is true that the New

‘York Court of Appeals (20 N. Y. 2d 376; Jury Stat., p. 18)

did so in. one sentence, and further cited a siemultaneots

decision in another case which in turn cited decisions of

this Court on constitutiional questions.

As to this it is respectfully submitted, first, that the

actual gravamen of the: Court of Appeals decision was

directed to the only issues presented by the ‘records be-

fore it, to wit, the interpretation, not the constitutionality,

of the contractual and statutory provisions involved, and

the question whether the proper procedure for the relief

sought by Appellant was: exclusively that provided by

Section 2603 of the Public’ Authorities Law.

Second, the ruling: on constitutionality of section 2601

- of the Public Authorities Law, even though it-cited a case,

A \ y ;

decided simultaneously, whieh in turn cited constitutional

eases decided by this Court, does not clearly or expressly

predicate such ruling on the federal constitution, or any

particular provision thereof. Moreover, in the very sen-

tence containing this ruling there is this statement:

. that the disqualification imposed on the appellate

: oneeaiion 3 is valid’’. From this it could be concluded that

the Court of Appeals predicated its decision, at least in

part, on the validity of the disqualification not- under the

statute, whether or not such statute was constitutional,

but as a matter of interpretation under the express pro-

_ visions of Section 38 of the Contracts. In this connection,

_ the record before that court shows that it was by virtue

of ‘such contractual, and not statutory provisions, that

“the disqualification was both imposed and attacked. And

if such contractual provisions could validly have been

entered into by the parties—as will hereafter be shown—

even if.no statute mandating it were in existence, then

obviously the reference to constitutionality of the statute,

apart from its lack’ of specificity as to its federal nature,

would be unnecessary to the decision. At least, it would

not be: the sole basis therefor, and therefore would be

insufficient to support jurisdiction of this appeal. .

In sum, at the most: it is only by surmise that there

can be spelled out a determination by this state court based

lely and necessarily, on a question of a federal nature,

constitutional or otherwise. Under the foregoing circum-

stances it has repeatedly been held by this Court that

such an appeal is not within its jurisdiction because it does

not present. a substantial federa] question, timely or

properly raised, or expressly passed upon (Rule 16).

The case of Lynch v. New York, 293 U.S. 52, frequently,

cited by this Court in dismissing appeals on such grounds,

a fortiori demonstrates this. Therein the record showed

that express federal constitutional questions had, unlike

the present case, been properly and timely raised. Other-

wise, this decision is so apposite to the circumstances of

: 7.

the present case that leave is respectfully prayed to quote — |

at length from the opinion of this Court therein, rendered

by Mr. Chief Justice Hughes, as follows:

(At pp. 53-55): ‘‘The relator sought review by the

Supreme Court of New York, invoking rights under

the Constitution and laws of the State of New. York |

and under the Fourteenth Amendment of the Constitu-

tion of the United States. The Appellate Division

of the Supreme Court, Third Department, annulled

the determination ‘of the State Tax Commission. 237

App. Div. 763, 263 N.Y.S. 259. That Court, while cit-

ing decisions of this Court under the Fourteenth

Amendment, did° not state that its decision rested

upon the application of the Constitution of the United

States. The Court of Appeals of the State affirmed

the order of the Appellate Division, but without

opinion (263 N. Y. 533, 189 N. E. 684), and the grounds

of its decision are left to conjecture. It may be sur-

mised, from the quotations in its, opinion,’ that the

Appellate Division intended to rest its decision upon a

determination of the application of the -Fourteenth

Amendment, and: that the affirmance by the Court of -

Appeals went upon the same ground, and not upon the.

non-federal ground of the application of the Constitu-

tion and laws of the State. But jurisdiction cannot

be founded upon surmise. Nor can claim of jurisdic-

tion be sustained_by reference to briefs and statements

which are not part of the record.

‘<It is essential to the jurisdiction of this Court in -

reviewing a decision of a court of a State that it

must appear affirmatively from. the record, -not only

that a federal question was presented for decision to

the highest court of the State having jurisdiction but

that its decision of the federal question was necessary

to the determination of the cause, and that it was

actually decided or that the judgment as rendered could

not have been given without deciding it. De Saussure—

16

v. Gaillard, 127 U. S. 216, 234, 32 L. ed. 125, 132, 8

S. Ct. 1053; Johnson v. Risk, 137 U. S. 300, 306, 307,

34 L. ed. 683, 686, 11 S’ Ct. 111;- Walter A. Wood

‘Mowing & Reaping Mach. Co. v. Skinner, 139 U. S.

293, 295, 297, 35 L. ed. 193-197, 11.S. Ct. 528; Eustis

__-v. Bolles, 150_U. S. 361, 366, 367, 37 L. ed. 1111, 1112,

414 S.Ct 131; Whitney v. California, 974 U. S. 357,

360, 361, 71 § ed. 1095, 1098, 1099, 47 S. Ct. 641;

Mellon v. O’Neil, 275 U. S. 212, 214, 72 : ed. O45,

246, 48 S. Ct. 62. Where the judgment of the. state

court rests on two grounds, one involving a federal

question and the other not, or if it does not appear.

upon which of two grounds the judgment was based,

and the ground independent of a federal question is

sufficient in itself to sustain it, this: Court will. not

_ take jurisdiction. Allen v. Arguimban, 198 U. S. 149,

- 154, 155, 49 L. ed. 990, 993, 25 S. Ct. 622; Johnson v.

Risk, 137 U.S. 300, 34 L. ed. 683, 11 S. Ct. 1¥1, supra;

Walter A. Wood Mowing & Reaping Mach. Co. v.

Skinner, 139:U. S. 293, 35 L. ed. 193, 11 S. Ct. 528. ~

supra; Consolidated Turnp. Co. v. Norfolk & O.V.R.

Co., 228 U. S. 596, 599, 57 L. ed. 982, 983, 33 S. Ct. 605;

Ceyahoga River Power Co. v. Northern Realty Co., 244

U. S: 300, 302, 304, 61 L. ed. 1153, 1157, 1158, 37 S. Ct.

643. 29 .

That it is essential to Surtadiohion that the federal. con-

_ stitutional ‘issue ‘must be timely and properly raised, and

expressly passed upon -by the state courts, has aiso been

repeatedly held by this Court. Bailey v. Anderson, 326

U. S. 203, 206; Wilson v. Cook, 327. U. S. 474; Beck v.

Washington, 369 U. S. 541, 549-554 ; ‘Charleston Federal -

Savings & Loan Association v. Alderson, 324 U. S. 182,

186 (see, especially, footnote at p. 186).

* >

.

“ 2°

‘This Appeal’ Does Not — a Substantial

"Federal Question

A. The determination of the New York courts was ecull- |

cated basically upon other than constitutional grounds |

—state or federal.

As hasbeen seen, the en was wholly

grounded on the contractual provisions (Par. ‘‘4’’, supra,

Art, 78, R., 20-21), and the attack on that action was

primarily prédicated upon Appellant’s' claim of misin-

_terpretation of such provision (Par. ‘‘5’’, supra; Exh. C-1

Annexed to Petition; Art. 78, R. 23-26). Appellee re-

- spectfully submits that whether it included the provisions

of Section 38 in its contracts by reason of the mandate

of Section 2601 of the Public Authorities Law, or had

included them even in the absence of such statute, is of

no moment. -They were purely contractual isi either case,

and must be so construed. That Appellee Authority had

the right to provide for such conditions with or without

specific statutory mandate or authority is clear from Sec-

tion 151 of the New York Public Housing Law, which pro-

vides, in part, that the contracts of a Housing Authority.

may be ‘¢. | . in such form:and contain . . . such terms

and provisions as may be deemed advisable by the Au- .

thority’’. And under the further provisions of such Sec-

tion 151 ‘‘An Authority may make riles and ae

governing the qualification of bidders .. .”’.

“Both Justice Tilzer in the New York ‘Supreme Court

(Jur. Stat., p. 15), and the Appellate. Division (Jur. Stat.,

p. 17), dearly based their decisions on such contractual

provisions and their interpretation. - And primerily, it is -

submitted, so did the Court. of Appeals in affirming thege -

déterminations, in holding that ‘‘. . . the disqualification

imposed on the appellant corporation is valid’’; especially

in view of the state of the records before it, the opinion of

the courts below, and the language of the balance of its

opinion interpreting the effect of the purported resignation |

on thése provisions. L

.

i .

i. SR a 8 ed eel DE OEE

- - . _ om my are ,

. oan

B. The contractual provisions and their enforcement

‘present no constitutional or federal question. —

Mandatory provisions are required both by state and’

federal law in’ private as well as in public contracts—such

as standard forms of insurance policies, prevailing: rate

provisions, and others.. Had the contracts here in issue

been entered into by Appellant with a private owner, surely -

it could not contend that the imposition and enforcement

of their waiver of immunity provisions, ‘voluntarily as-.

sumed and agreed to by Appellant, could raise any constitu-

tional question. That they were entered into with Appel-

lee, a public corporation, makes no difference in their

interpretation, validity, effect or enforceability.

. Thus, in Hollerbach v. United States, 233 U. S. 165, this

Court. said:

‘Lp. 171}:

ae government contract should be interpreted 4 as

are contracts between individuals, with a view to as-

certaining, the intention of thé parties and to give it

effect accordingly, if that can be done consistently with

_ the terms of the instrument.”’

Like private contracts, either the contractor takes them

upon the terms ‘and conditions offered, or he leaves them

altogether. The choice is his, and it is a completely vol-

untary one. He cannot’ take the benefit of those terms

. | which are to his advantage and refuse to assume the onus

of those which he deems objectionable. And, it is respect- |

fully submitted, this ought to be espedially so where he is |

required to bid. a public contract upon equal terms with -

‘his competitors. Atkins v. Kansas, 191 U. 8S. 207, 222;

Campbell v. City of New York, 244 N. Y. 317, 327; People

v. Crane, 214 N. Y, 154, 179, aff’d 239 U. S. 195. '

Moreover, even: were the waiver of immunity required

by these contracts that of ‘Appellant corporation itself (if

there may be such a thing with respect to a corporation)

19

rather than that of its individual officer, George Campbell,

Jr. (who is not even a party to these litigations), such

waiver affected nothing more than its property. rights, if

any, As clearly appears from the Records, it is such

rights only which were the basis of Appellant’s attack on

the disqualification. There is nothing illegal] or unconsti-

tutional in a contract pursuant to which a party waives a

constitutional or statutory right, benefit or immunity af-

fecting property rights only—unless, of course, a particu- .

lar enactment prohibits such waiver.

Cooley, i in his Treatise on Constitutional Limitations (8th

Ed.), Vol. 1, pp. 368-369, puts it this way:

“Where a constitutional provision is designed for

_the protection solely of the property rights of the citi-

gen, it is competent for him to waive the protection, -

and to consent to such action as would be invalid if

. taken against his will.’’, citing:

Shepard v: Barron, 194 U. 8S. 553;

Humbird v. Avery, 195 U. S. 480;

Mayor, etc. of — York v. Manhattan: o Ry. Co.,

Se oe

Musco v. United Surety Co., 196 N. Y. 459;

Pierce v. Somerset Railway, 171 U. S.,641.

_ Wigmore, in his Treatise on Evidence (McNaughton,

Rev. ed. 1961), section: 2275, v. 8, p. 453, discussing con-

tracts independent of statutory mandate, makes this state-

ment with respect to “Waiver by Contract’’:

. ‘It has never been doubted that the privilege against

self-incrimination, like all privilege is ‘waivable.”’

C. The alleged deprivation of constitutional rights was

not that of this appellant, and it has no standing te

assert, them.

Pe “To begin with, the’ privilege against self-incrimination -

is a purely personal one, and can neither be asserted by the

corporation on behalf of its erstwhile individual officer, or

20 :

by such individual on behalf of the corporation. Hale v.

_ Henkel, 201 U.S. 48, °74, 75; Wilson v. United States, 221

221 U.S. 361, 383-385; Reigce Co. v. United States, 262

U. S. 151; United States v. White, 322 U. S. 694, 699;

Baltimore and Ohio R. Co. v. Interstate Com. Com., 221

U. S. 612, 622.

In the last nedihonsd: case this Court said, for instance:

[p. 622]:

‘With respect to its officers, it would be sufficient to

say: that the privilege guaranteed to ‘them by this -

amendment is a personal one which cannot be asserted

on their behalf by the corporation .

But more . important, it -is respectfully submitted that

‘‘The Substantial Federal Question’’ posed-by Appellant

(Jur. Stat., p. 8), as well as the argument made and cases

cited in its support (Jur, Stat., pp..8-10}.in themselves re-

veal that this Appellant corporation has neither standing

‘ nor basis for invoking the constitutional issue sought to be

presented in this appeal. That argument is summed up

in this statement: ‘‘. .. the assertion of the privilege may

not, by itself, result’in a forfeiture or penalty.’’ (Jur. Stat.,

p. 8).

Appellee*has no quarrel with this acid principle. It

must be remembered, however, that it was the individual,.

-¢ George Campbell, Jy., whé refused to waive immunity, not

_ Appellant corporation. If anyone’s constitutional. rights

were impaired, they were his. But even as to him, and even »°

were he a party t« to _ appeal, what rights of his were im- .

paired?

3 asi noted, the argament is made, and cases cited for the

pfoposition, that the right to refuse such a waiver cannot

be made ‘‘costly’’ or the subject of a pentklty. But in ali »

of such cases the cost or penalty was threatened against

or imposed upon the very one who invokedcfhe privilege.

In this instance,.on the other hand, it is fifmly and ada-

/

Pe)

21

mantly maintained throughout the Reeords that at the

time he was called upon to waive, immunity George Camp-

bell, Jr. was legally and actually a total stranger to this —

Appellant corporation, having given up not only. his

offices of president and director, but also all of his stock

and other financial] interests therein: Accordingly, although

his refusal to waive immunity resulted in the disqualifica-

tion of Appellant corporation, it resulted in no penalty or

epst to him, individually, of any nature, directly or in-

acts. While such disqualification jnay, ‘indeed, have ~

beef costly to and penalized Appellant, corporation, that

was a risk it assumed by its contracts | rily entered

into, and not by its assertion of the constitutional privilege

| nosed by this appeal—even assuming that as a corporation

it could assert such a privilege.

The Determination petite From Not Being

. Final Within the Meaning of the Judicial Code,

28 U.S.C. Section. 1257, This Court Has No

Jurisdiction Over This Appeal. —

In its opinion the New York Court of Appeals expressly

said (20 N. Y. 2d 370; Jur. Stat., p. 19):

(pp. 376-377) ba

‘There may be times when the statute will operate

to penalize a corporation which had severed its con-

nection with the recalcitrant officer and which has

otherwise been cooperative. The Legislature has, how-

ever, recognized this problem and has specified a pro-

cedure by which the disqualification can be removed

under.such circumstances. (Public Authorities Law,.

section 2603.) The appellant’ s exclusive remedy 1 is the

procedure outlined in that statute. ms .

*

‘That such construction of this state statute was solely

the province of the state Court, i jis well settled. Hicklin v.

_ - Coney, 290 U. S. 169, 172. Accordingly, under this decision

there has not been laid’at rest. the continued disqualifica-

ea

22

tion of Appellant which it seeks to remove by this appeal,

since, as the Court of Appeals has stated, it ‘‘. . . can be

removed .. .’’ by pursuing this available, though exclusive,

procedure. The determination is therefore not ‘‘final’’ °

_within the meaning of the’ Judicial Code. As stated in

Market Street Railway Co. v. Commission of California,

‘324 U. S. 548, 551:.

‘*F inal] it must be in two senses: It ‘must be wile .

to no farther review or correction in any other state

tribunal; it must also be final as an effective determi- .

\ nation of the litigation and not of merely interlocutory

\ or intermediate steps therein. | It must be the final word

_ Of a final court.’’

nd’ in Gospel Army v. Los Angeles 331 U. S. 543, 546, :

this. Court said:

’ “*Tt is no longer the rule that the face of judg-

ment is determinative of whether it is final. Today

‘the test is not whether under local rules of practice

' the judgment is denominated final-. . . but rather -

whether the record shows that the order of the appel-

late court has in fact fully adjudjcated rights and that

that adjudication is not subject to further review by

said court.’ Department of. Banking v. Pink, 317

U. S. at 268.”

» : s

‘In Any Event, the Decision of the State Court, ~

Appealed From Is So Manifestly Correct That No “

Further Argument Thereon Is Necessary.

Appellant relies largely’ for its attack on the statutory

and contractual provisions herein on the recent decisions

of this Court in Garrity v. New Jersey, 385 U. S. 493 and

Spevack v. Klein, 385 U. S. 511 (Jur. Stat., pp. 8-10).

Neither of these cases overruled. the line of decisions

of this Court holding that although people in public office —

and on the public payroll may not be compelled fo surren-

der their constitutional privilege against self-incrimination,

23

: “*,

they have no constitutional right to remain in office wheh

_ they refuse to furnish information ‘patently bearing upon

their fitness to do- so, and to discuss with frankness

and candor whether they have faithfully performed their

duties. Nelson v. Los Angeles County, 362 U. S. 1, 7;

Beilan v. Board of Education, 357 U. 8S. 399; Lerner v.

Casey, 357 U.S. 468.

While Garrity held that testimony obtained from a police .

officer under a waiver of immunity induced by a threat

of discharge could not be used against him in a criminal

prosecution, nothing in the decision indicates that he

could not have been discharged from his public office ”

for failure to furnish such information under a waiver.

The Spevack case, decided at the same time as Garrity,

held that a lawyer, though licensed by the state—like a

doctor, barber or chauffeur—could not be compelled, upon

pain of disbarment, to waive his privilege against self-

incrimination and testify about his professional conduct.

But, as clearly indicated in the concurring opinion of Mr.

Justice Fortas, had the case involved an employee of the

state, with ‘‘. . . the responsibility of an employee to ac-

count to the state for his actions . . .’’, the decision would

- have been otherwise, and in conformity with the principles

of Nelson, Beilan and Lerner, supra. , .

It was on this basis that the New York Court of Ap-

‘peals decided Gardner v. Broderick, 20 N. Y. 2d 227 (Jur.

Stat., pp. 20-23), cited in its opinion in the instant case.

Also : on this basis was a very recent detision by the arte

States Court of Appeals, Second Circuit, in Unifo

Samiation Men Association v. Commissioner of Shite.

tion, —— F. 2d —— (decided Sept. 20; 1967) (not yet offi- -

cially reported), upholding the discharge of city sanita-

tion employees for refusal to furnish information by

pleading their privilege against incrimination, citing Nelson

v. County of Los Angeles, supra,-362 U.S. 1, 7.

That a contractor who voluntarily undertakes by public

- contract to furnish similar nn hearing upon his

24.

conduct in performing other such public contracts, and his

_ consequent qualifications or lack thereof for the award: -of

_ further public contracts, should be held to equal standards,

would seem to be self-evident. It was so held in United ©

‘States ex rel. Laino v. Warden, 246 F. Supp. 72 (S.D.N.Y.

1965), aff’d 355 F. 2d 208 (2d Cir., 1965). In an “ex-

haustive and persuasive opinion by the District Court it

was said:

[p. 92]:

“ “We now proceed to the asserted unconstitutionality

_ of Section 103-b of ™ Generel Municipal Law of New

York.

The statute here elie attack was added to the

General Municipal Law in 1959. A similar statutory .

provision was added to the State Finance Law to-

cover persons doing ‘business with the State (State

Finance Law § 139-b, McKinney’s Consol.: Laws, c. 56)

and to.the Public Authorities Law to cover persons

doing business with a public authority of the state or

any political subdivision thereof. (Public Authorities .

Law § 2602, McKinney’s Consol. Laws, c. 43-A.)

The need for this legislation was set forth in the

Memorandum of the Attorney General, wherein -he

stated :

. “The Extraordinary Grand J ury conibiating an

‘investigation in Ulster County, on January 28, 1959

handed up a presentment pointing out that its in-

quiry had been blocked by the refusal of ‘persons

who had been selling merchandise and equipment to

the county to give testimony about their. dealings

. with public officials.. It recommended legislation to

' meet that problem. This bill is such legislation.’

_ (Memorandum of the Attorney General, N. Y. State

Legislative Annual 1959, at 148.)

carl,

+

a

aay

25

[p. 94]:

‘‘The requirement in Section 103-b, that public con-

tractors waive immunity before investigative bodies

on the sanction of possible disqualification, has the

same valid basis as those involving public employees.

‘* Accordingly, it can be argued that the sanction of

possible disqualification present in Section 103-b is

” predicated on the lack of candor and frankness which

is expected of one doing business with the state, and

that such lack of cooperation and failure to discharge

one’s responsibility is incompatible with the position

held, rather than a disqualification, eo instantio, based

solely on one’s invocation of his Fifth Amendment

right. This rationale is, of course, the saving grace

whereby prior sanctions of this nature have withstood

judicial scrutiny.

[p. 95]:

_. ‘Moreover, in one sense relator owed a higher duty

to. freely discuss and-answer questions relating to the

performance of his official acts than a Government

employee. In the case of a public employee, the state

has at least a choice of hiring or not hiring an indi-

vidual, whereas in the case of a contractor the state’s

ability to choose is severely restricted. ‘

_ [p. 96]:

‘‘Similarly in. the case at bar, relator possessed no

- inalienable right to contract with the state. His right

in. that regard could be tempered by reasonable con-

ditions imposed upon him, one of them being the

necessity‘of being candid with the authorities and giv- |

‘ing full answers to questions propounded by investi-

gative bodies, the answers to which would reflect on

’ his qualifications and fitness to utilize the privilege

of doing that business. Accordingly, it is not unrea-

sonable for the state to expect that business done with

26

it’ was above-board and that persons doing that busi-

ness would be frank and assist in the investigation of

their qualifications. To impede that investigation by ~

‘any device is to preclude the state from judging those

qualifications and breach the trust imposed’ on a

‘quasi’ governmental official such as a public con-

- tractor. ee

[p. 98] :

‘* Accordingly, the ieahbnalionntiey of Section — b

will be casas el this Court.’ 9

Said this Court in Bonk of aidan v. Earle (13 Pet.

443, 512), 10 L. ed. 274, 312, 38-U. S. 517, 596:

‘It is but justice to all the parties concerned, to sup-

_ pose that these contracts were made in good faith,

\and that. no suspicion was entertained by either of

them, that these engagements could not be enforced.”’

ta

~ CONCLUSION

It is respectfully submitted that this motion to dis- -

miss or affirm should be granted.

October 27, 1967. 7

' Respectfully submitted,

Harry Levy,

_ Attorney for Appellees, ~

250 Broadway,

New York, New York 10007,

| 433-5015.

Of Counsel:

Pauw W. HEsseEt,

i 2 STANLEY STEIN,

ty