Court Voids Extended Terms for County Commissioners

    Argued by
A ndrew D. W einberger

f a  fork Supreme (tart
A ppellate  D ivision— Second Department

Gertrude Novick and J ulius Novice, 
A dolph R oss and L illian R oss,

Plaintiff s-Appellants,

against

L evitt & Sons, I nc.,
Defendant-Respondent.

REPLY BRIEF OF APPELLANTS

Statement

As the respondent raised issues in its brief not 
covered in the brief of appellants, appellants sub­
mit this reply.

POINT I

The appellants have standing to seek a 
determination of the Constitutional issue in­
volved.

Under Point I of its brief, the respondent ques­
tions the right of the appellants to challenge the 
contemplated action of the respondent on con­
stitutional grounds. The respondent cites, in 
support of its contention, Dorsey v. Stuyvesant



2

Town Corporation, 299 N. Y. 512 (1949) wherein 
the Court of Appeals of this state refused to hear 
the case of a white taxpayer who brought an 
action to enjoin the City of New York from enter­
ing into a contract with the defendant Stuyvesant 
Town Corporation. The Court refused to hear 
the case on the ground that the taxpayer was not 
a member of the class allegedly discriminated 
against by the said corporation. In a separate 
action, which the Court of Appeals heard, Negro 
veterans, members of the class discriminated 
against, sought to compel their admission to the 
housing project to be built by said corporation 
under contract with the City of New York on the 
ground that the city had given such aid to the 
corporation as to make the project developed by 
it a city function. Unlike the appellants in this 
case, who will be directly affected by the uncon­
stitutional action contemplated by the respondent, 
the taxpayer in Dorsey v. Stuyvesant Town Cor­
poration, supra, was not in any way affected by 
the unconstitutional discrimination alleged. If 
the respondent in this case is allowed to proceed 
to evict the appellants for the reason that the 
appellants allowed Negro children to play with 
their children in violation of the respondent’s 
prohibition against the use of the premises by 
persons other than Caucasians, then the appel­
lants will be evicted from their home and denied 
the right to have Negroes as guests by the action 
of the state in violation of the prohibitions of the 
Fourteenth Amendment to the Federal Constitu­
tion.

In cases involving state court enforcement of 
racial restrictive covenants, the challenge to the 
validity of the action of the state in such cases



3

was not necessarily raised by the member of tbe 
racial group discriminated against. On the con­
trary, in most of those cases a party to the agree­
ment sought the aid of the court to enjoin another 
party to the agreement who sought to break the 
agreement, and the constitutional issue was 
raised by the party sought to be enjoined. In 
Kemp v. Rubin, 297 N, Y. 955 (1948), plaintiffs, 
Kemp and another, (both white persons) sought 
to enjoin Sophie Rubin (also white) from selling 
her property to a Negro, Richardson, in violation 
of a restrictive covenant agreement to which 
Sophie Rubin was a party. In their complaint, 
the plaintiffs alleged:

“ 7. On information and belief that the 
defendant Sophie Rubin has entered into 
negotiations with persons of the Negro race 
for the sale of the premises owned in fee by 
her and known as 112-03 177th Street, 
St. Albans, New York.

“ 8. On information and belief that the 
defendant Sophie Rubin has made a contract 
of sale with, and received a deposit from a 
person or persons of the Negro race, for the 
sale of the premises known as 112-03 177th 
Street, St. Albans, New York.

“ 9. On information and belief that the 
defendant Sophie Rubin intends to carry out 
the negotiations for the sale of the premises 
known as 112-03 177th Street, St. Albans, 
New York, and to carry out the sale of said 
premises to a person or persons of the Negro 
race.

“ 10. That said sale of the said premises 
112-03 177th Street, St. Albans, New York, 
would be in violation of the agreement for 
restrictive covenant duly recorded and men­
tioned in paragraph 1 of this complaint, and 
which the defendant Sophie Rubin duly 
signed and is a party thereto.”



4

An injunction was issued against Sophie Rubin 
by the Supreme Court of Queens County and af­
firmed by the Appellate Division, Second Depart­
ment. The order of the Supreme Court read in 
part as follows:

‘  ‘ Ordered, adjudged and degreed that the 
defendant Sophie Rubin be and she hereby 
is permanently restrained and enjoined until 
December 31, 1975, from permitting the use 
or occupancy by, or selling, conveying, leas­
ing, renting or giving to Samuel Richardson, 
a Negro, or to any person or persons of the 
Negro race, blood or descent the premises
112-03 177th Street, St. Albans, New York,
*  #  *

The person discriminated against because of 
race and color in that case was not Sophie Rubin, 
who was white, but Richardson, a third party who 
was a Negro. However, the constitutional issue 
whether the Court could, consistent with the 
Fourteenth Amendment, enjoin violation of the 
agreement and thus give force and effect to same, 
was raised by Sophie Rubin. Therefore, it is 
clear that the constitutional issue in cases in­
volving the use of state power to give force and 
effect to private discrimination need not be raised 
by persons who would be discriminated against 
because of race and color by the action of the 
state, but may be raised by one who is in the 
position of the appellants in this case, that is, by 
a person who seeks to sell his house to a Negro 
in violation of a restrictive covenant as in the 
case of Kemp v. Rubin-, supra, or by a tenant who 
seeks to entertain Negro children in violation of 
a prohibition against the use of leased premises 
by persons other than Caucasians.



5

In the restrictive covenant cases, the respond­
ent contends, unlike this case, there was a willing 
buyer and a willing seller. In this case, the ap­
pellants are willing to invite Negroes as guests 
and the Negroes are willing to accept this invita­
tion. The respondent would seek to invoke its 
prohibition to prevent the appellants from ex­
tending the invitation and to prevent the Negroes 
from accepting. However, the respondent’s pro­
hibition in this situation would be of no effect 
without invoking the “ full coercive power of the 
state.”  In the restrictive covenant cases, there 
was a willing seller and a willing buyer. A  third 
party sought to intervene to prevent the seller 
from selling his property and the buyer from 
buying the property in violation of an agreement 
between the third party and the seller. The third 
party’s interference wTas without force and effect 
until the “ full coercive power of the state”  was 
invoked. Shelley v. Kraemer and Sipes v. Mc­
Ghee, 334 U. S. 1.

POINT II

A  tenant has a constitutionally protected 
right to have in his home Negroes as guests 
without the interference of the state which 
has been invoked by the landlord to give 
effect to the landlord’s prohibition against 
such action on the part of the tenant.

Contrary to the contention of the respondent 
herein, the appellants do not seek in this action 
to have their lease renewed. Neither do the ap­
pellants seek to have the respondent accept Ne­
groes as tenants. Therefore, Dorsey v. Stuyve-



6

sard Town Corporation, supra, upon which the 
respondent relies, is completely inapplicable to 
this case. The appellants herein rightfully gained 
possession of the respondent’s premises. The 
only question which they raise in this action is 
whether they may be evicted for the sole reason 
that they violated the respondent’s prohibition 
against the use of the premises by persons other 
than Caucasians. In other words, the appellants 
question the respondent’s right to the aid of the 
state to evict them for a reason which will result 
in unconstitutional discrimination against third 
persons.

In Shelley v. Kraemer and Sipes v. McGhee, 
supra, the United States Supreme Court specifi­
cally said at page 22:

“ The Constitution confers upon no indi­
vidual the right to demand action by the 
state which results in a denial of equal pro­
tection of the laws to other individuals. And 
it would appear beyond question that the 
power of the state to create and enforce prop­
erty interests must be exercised within the 
boundaries defined by the Fourteenth Amend­
ment. ’ ’

This portion of the United States Supreme 
Court’s decision in the restrictive covenant cases 
is omitted from the brief of the respondent here­
in. It is omitted from their brief for the plain 
reason that it is the essence of the appellant’s 
case. This language is without equivocation. It 
means that the landlord in this case does not have 
the right to invoke the aid of a court to evict the 
tenants for the reason alleged.

The Court said further something else which is 
specifically applicable to this case and to which



7

the respondent does not refer for the simple rea­
son that the language is clearly determinative of 
the issue here. The Court said at page 20, refer­
ring to the Fourteenth Amendment:

“ Nor is the Amendment ineffective simply 
because the particular pattern of discrimina­
tion, which the state has enforced, was initi­
ally defined by the terms of a private agree­
ment. ’ ’

The tenants therefore have a constitutionally pro­
tected right to have in their homes Negroes as 
guests without the interference of the state which 
has been invoked by the landlord to give effect 
to his private prejudices as such action on the 
part of the state would result in a denial of the 
equal protection of the laws to other individuals.

The appellants do not deny that the Court said, 
as pointed out by the respondent in its brief at 
page 13:

“ That Amendment erects no shield against 
merely private conduct however discrimina­
tory or wrongful.”

But this is not where the Court stopped as re­
spondent would like to believe. What the Court 
held was that the Amendment erects no shield 
against merely private conduct which is discrim­
inatory where there is no necessity for invoking 
the aid of the state to give effect to such conduct, 
but where it is necessary to invoke the aid of the 
state to give effect to such conduct, then the Four­
teenth Amendment is effective. The appellants 
stated at the bottom of page 8 of their brief:

“ It may be true that the respondent in this 
case has the right under the law of this state 
to let its property to whomever it chooses



8

and the appellants in the instant case do not 
question that right in this action.”

This statement is made by the appellants for the 
reason that appellants recognize that in refusing 
to rent to Negroes it is not necessary for the 
respondent to invoke the aid of the state to give 
effect to this discriminatory policy. The respond­
ent says on page 9 of its brief, if A and B may 
agree not to sell (or rent) to C because of his 
color, then, a fortiori, A may alone decide that he 
will not so sell (or rent). This is obviously true, 
and the restrictive covenant cases, Shelley v. 
Kraemer and Sipes v. McGhee, supra, so stated. 
But this was not the issue or the holding in those 
cases, nor is it the issue raised in this case. The 
issue raised in those cases and in this case is 
whether the power of the state might be invoked 
to give effect to such agreement (or decision). 
The Court held specifically that the aid of the 
state could not be invoked to give effect to the 
agreement between A and B. A fortiori, the aid 
of the state could not be invoked to give effect 
to the decision of A alone that he will not sell (or 
rent) to C because of his color.

POINT III

Courts may appropriately withhold their 
aid where one seeking to assert an otherwise 
valid right is motivated by a bad purpose.

The respondent in its brief disposes of the pub­
lic policy argument advanced by the appellants 
in their brief by referring to the fact that in 
Dorsey v. Stuyvesant Town Corporation, supra, 
(which is not in any way determinative of the



9

issue raised in this case, as pointed out above), 
the Court of Appeals did not regard the statutes 
cited by the appellants in their brief as directing 
the Court to the public policy of the State of New 
York. In the case which is determinative of the 
issue raised in the instant case, Kemp v. Rubin, 
supra, these statutes were brought to the atten­
tion of the Court of Appeals, and although the 
Court of Appeals merely reversed, citing Shelley 
v. Kraemer and Sipes v. McGhee, it did not reject 
the argument made by the appellants in that case 
that these statutes indicate that the public policy 
of the State of New York is contrary to judicial 
enforcement of private discrimination.

If the statutes cited by the appellants in their 
brief are not sufficient to demonstrate that the 
public policy of the State of New York is opposed 
to judicial enforcement of private discrimination, 
then it should be sufficient that there is a general 
principle of law that the courts may appropri­
ately withhold their aid where the plaintiff is 
using the right asserted contrary to the public 
interest. Morton Salt Co. v. G. S. Suppliger Co., 
314 U. S. 488 (1941); Rehearing denied 315 U. S. 
826 (1941). Virginian R. Co. v. System Federa­
tion, R. E. I)., 300 IT. S. 515, 552; Central Ken­
tucky Natural Gas Co. v. Railroad Commission, 
290 U. S. 264, 270-273; Harrisonville v. W. S. 
Dickey Mfg. Clay Co., 289 IT. S. 334, 337, 338; 
Beasley v. Texas $  P. R. Co., 191 U. S. 492, 497; 
Securities & Exch. Commission v. United States 
Realty & Improv. Co., 310 U. S. 434, 455; United 
States v. Morgan, 307 IT. S. 183, 194. In other 
words, relief may be denied by reason of the fact 
that the plaintiff in instituting suit has been in­
fluenced by bad motives. 19 Am. Jur. Section 479.



10

Here the respondent admits that its otherwise 
perfect right to evict the appellants herein is 
motivated hy the fact that the appellants invited 
Negro children to play with their children on the 
respondent’s premises. In short, the respondent 
admits that its motive is bad, yet the respondent 
brazenly seeks the aid of a court of the state to 
give effect to such a bad motive. As the cases 
above cited held, where this is true the courts in 
the interest of the public should refrain from 
aiding the person who is motivated by such bad 
purpose.

Respectfully submitted,

R obert L. Carter, 
Constance B aker Motley, 
J ack Greenberg and 
A ndrew D. W einberger, 

Attorneys for Appellants.



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