Hall v. Coburn Corporation of America Brief of Plaintiffs-Appellants

    C j W a d . H u

L-x;nuoD K)

COURT OF APPEALS
OF THE STATE OF NEW YORK

EDNA A. HALL, on behalf of herself and all other 
persons, similarly situated, who bought merchandise 
by entering into retail installment sales contracts 
by signing Form "N.Y. COB 3-N.Y." , which contracts 
were subsequently purchased by the Coburn Corporation 
of America,

Plaintiff-Appellant,
-against-

COBURN CORPORATION OF AMERICA, a corporation,
Defendant-Respondent.

ACTION 
No. 1

WILLIAM RUSSELL, III and NEIVORY RUSSELL, on behalf 
of themselves and all other persons, similarly situ­
ated, who bought merchandise by entering into retail 
installment sales contracts by signing Form "N.Y. - 
COB 4-N.Y.", which contracts were subsequently pur­
chased by the Coburn Corporation of America,

Plaintiffs-Appellants, ACTION
-against- No. 2

COBURN CORPORATION OF AMERICA, a corporation,
Defendant-Respondent.

BRIEF OF PLAINTIFFS-APPELLANTS

JACK GREENBERG and
PHILIP G. SCHRAG 
NAACP Legal Defense and 

Educational Fund, Inc.
10 Columbus Circle 
New York, N.Y.
212-JU 6-8397

PAUL, WEISS, GOLDBERG, RIFKIND, 
WHARTON & GARRISON 

345 Park Avenue New York, N.Y. 10022 
212-935-8000

Attorneys for Plaintiffs-Appellants
Jay H. Topkis

Of Counsel



COURT OP APPEALS
OF THE STATE OF NEW YORK

EDNA A. HALL, on behalf of herself and all other 
persons, similarly situated, who bought merchandise 
by entering into retail installment sales contracts 
by signing Form "N.Y. COB 3-N.Y.", which contracts 
were subsequently purchased by the Coburn Corporation 
of America,

Plaintiff-Appellant,
-against-

COBURN CORPORATION OF AMERICA, a corporation,
Defendant-Respondent.

WILLIAM RUSSELL, III and NEIVORY RUSSELL, on behalf 
of themselves and all other persons, similarly situ­
ated, who bought merchandise by entering into retail 
installment sales contracts by signing Form "N.Y. - 
COB 4 - N.Y.", which contracts were subsequently pur­
chased by the Coburn Corporation of America,

Plaintiffs-Appellants,
-against-

COBURN CORPORATION OF AMERICA, a corporation,
Defendant-Respondent.

BRIEF OF PLAINTIFFS-APPELLANTS 

Questions Presented

Pursuant to leave granted by this Court on July 
1969, plaintiffs-appellants ("plaintiffs") appeal from the 
orders of the Appellate Division, First Department, dated

ACTION 
No. 1

ACTION 
No. 2



February 6, 1969, affirming without opinion the dismissal of 
their complaints. These appeals raise these questions:

1. Defendant, a sales finance company, has prepared, 
printed and distributed to retailers thousands of standard- 
form instalment sales contracts which violate the Retail 
Instalment Sales Act in the identical way: major portions of 
the contracts are printed in type smaller than the 8-point man­
dated by the statute. May plaintiffs and others who made pur­
chases under these contracts enforce their identical statutory 
rights by means of a class action?

2. Did the courts below, in denying plaintiffs and 
their fellow class members effective access to the judicial 
process, thereby violate their rights under the Federal and 
State constitutions?

Statement of the Case

In November, 1965, plaintiff Edna Hall purchased 
carpeting from a New York City merchant. In September, 1965, 
Mr. and Mrs. William Russell, the other plaintiffs, purchased 
carpeting from another merchant. Like thousands of other con­
sumers, they signed retail instalment sales contracts which 
defendant Coburn, a sales finance company, had supplied to 
the merchants with whom plaintiffs dealt. As was its practice,



Coburn acquired the signed contracts from the merchants im­
mediately upon consummation of the transactions.

The Coburn contract forms plainly violated Section 1 
of the Retail Instalment Sales Act, Pers. Prop. L., Sec. 402(1), 
in that portions were printed in type smaller than 8-point.

Mrs. Hall and the Russells brought actions to obtain 
the statutory remedy conferred by Pers. Prop. L., Sec. 414(2): 
recovery of the service charges paid under the unlawful contracts. 
The cash price of Mrs. Hall's carpet was $580; the credit service 
charge, $183.73. The cash price of the Russells' carpet was 
$549-02; the credit service charge, $166.77 (64-67).*

Since Coburn's unlawful contract forms have been widely 
used and have inflicted identical wrongs upon thousands of low- 
income consumers, and since individual suits to recover the 
small amounts at issue are practical for neither plaintiffs nor 
the courts,**plaintiffs have brought these actions not only on 
their own behalf but also on behalf of the other buyers whose 
rights Coburn had violated in the same way.

*A11 references are to the Record on Appeal.
**New York City's Small Claims Court, whose jurisdiction is in 

any event limited to $300, is not available here because Coburn 
is headquartered outside of the City. N.Y.C. Civ. Ct. Act §1801



The two actions were heard together in the Supreme 
Court, New York County. Special Term (Culkin, J.) dismissed 
the complaints, holding that a class action could not be main­
tained (25-36).

Plaintiffs took timely appeals to the Appellate Divi­
sion, First Department, which affirmed unanimously, without 
opinion, and denied leave to appeal (ix-xi).

On July 2, 1969, this Court granted leave to appeal
(viii) .

ARGUMENT

I.
THESE ARE PROPER CLASS ACTIONS

The Substantive Right

In 1957, in the Retail Instalment Sales Act, the 
Legislature sought to correct

"[a]buses [that] have devloped over the 
years in the rapidly expanding business 
of instalment selling— exorbitant charges, 
failure to disclose terms when a 'time 
sale' was made . . . and other improper
practices."

Memorandum of Governor's Consumer Council, 1957, McKinney's 
Session Laws 2113-1^-



So that consumers might know what they are buying, 
the Legislature acted to compel meaningful disclosure of the 
terms of all instalment sales contracts. In the very first 
operative sentence of the statute, the Legislature required 
that all instalment sales contracts be in writing and that 
they be printed "in at least 8-point type." Pers. Prop. L. 
Sec. 402(1).

The case at bar underscores the importance of the 
type-size mandated by the Legislature. Coburn printed these 
provisions, among others, in type too small to be comprehen­
sible (65) :

— A clause whereby the buyer agrees to pay a 
20$ attorney's fee for collection after 
default.

— A clause whereby title to the merchandise 
does not pass to the buyer until the mer­
chandise is fully paid for in cash, yet 
the buyer remains liable for loss or 
damage.

— A clause giving the seller the right to 
repossess the merchandise "without notice, 
demand or legal process," and the right 
to accelerate payments due, at any time 
the buyer is in default.

And most important,

— A clause whereby the buyer waives, under 
certain circumstances, all claims and 
defenses against a good faith purchaser 
for value.*

*It is perhaps unnecessary to observe that Coburn knows the 
importance of ready legibility: none of its standard dunning 
and collection letters is printed in type of less than 8-point 
(83-84).



The Legislature provided both public and private 
sanctions for violations of the Act. Willful violations are 
punishable as misdemeanors, Pers. Prop. L., Sec. 414(1). And, 
by way of private remedy, Section 4l4(2) provides:

"In case of failure by any person to comply 
with the provisions of this article, the 
buyer shall have the right to recover an 
amount equal to the credit service charge 
or service charge imposed in the amount of 
any delinquency, collection, extension, 
deferral or refinance charge imposed."

Consumers must, therefore, pay in full for merchandise purchased 
under an unlawful instalment sales contract, but they have the 
right to recover all service charges.

The Class Action Statute

Thus Coburn has violated the most basic provision of 
the Retail Instalment Sales Act, and plaintiffs seek the remedy 
which the Legislature has provided.

In these actions, plaintiffs invoke that remedy by 
the only means economically feasible: a class action on behalf 
of themselves and the thousands of others who have been victim­
ized by Coburn's illegal conduct. The trifling recoveries to 
which each member of the plaintiff class is entitled, the unavail­
ability of a small claims court remedy, and the inadequacy of one 
were it available--these circumstances make separate actions
inconceivable.



This State's class action statute, CPLR §1005(a),
would seem to have been tailored to deal with this situation:

"Where the question is one of common or 
general interest of many persons or where 
the persons who might be made parties are 
very numerous and it may be impracticable 
to bring them all before the court, one 
or more may sue or defend for the benefit 
of all."

Surely the statute's first simple and explicit test 
is here met. The "question" as to all members of the plaintiff 
class is the same: the size of Coburn's type. And there are 
"many" persons who are interested: the thousands who have been 
victimized by Coburn's intentional illegibility. Hence, "one 
or more may sue . . . for the benefit of all."

The statute's second, alternative test is also satis­
fied here: "the persons who might be made parties are very numer­
ous and it may be impracticable to bring them all before the 
court."

The simplest way to dispose of this appeal, we respect­
fully submit, is to ignore all distractions and keep in mind 
the statute's plain language. It is not ambiguous. It is not 
imprecise. It is not subtle. Its command is clear. It requires 
not construction, but application. As Mr. Justice Frankfurter 
remarked for the Court in a related context, Greenwood v. United



8

States, 350 U.S. 366, 37^ (1956):

"But this is a case for applying the canon 
of construction of the wag who said, when 
the legislative history is doubtful, go 
to the statute."

And there is further reason to read the statute as 
permitting a class action here: it makes sense to do so.

Plaintiffs will be advantaged: they will be able to 
have their rights vindicated in an economically feasible manner.
No purchaser victimized by Coburn could prosecute his suit alone-- 
today, lawyers will not take cases involving $183 or $166. But, 
in a class action, the rights of all may be vindicated and counsel 
may be fairly compensated.

The courts, too, will be advantaged: instead of the 
thousands of litigations which might possibly be brought against 
Coburn, there will be one.

And for the same reason, defendant Coburn will itself 
be advantaged: it will need defend but one case, instead of 
thousands.

And no one will be hurt: no members of the plaintiff 
class will have his rights adjudicated in a way he might not 
desire (as where possible plaintiffs in a class action have



9

several possible remedies). For here, If the class action 
succeeds, each member of the plaintiff class will receive the 
only remedy to which he Is entitled: there Is no other.

In the courts below, defendant suggested with an ad­
mirably straight face that a class action might thrust recoveries 
upon some members of the class which they did not really desire: 
many would prefer, said defendant, not to enforce their statutory 
rights. Perhaps this is so, perhaps Coburn is the favorite object 
of charity in the ghetto— and perhaps not. In any event, any 
member of the plaintiff class will surely be free to waive his 
rights once they have been established in a class action the 
class action will merely operate to have the rights established 
economically.

Defendant, of course, professes not to see it this way. 
But let us be blunt: defendant's real reason for opposing a class 
action is its hope— indeed, its confidence— that, if separate 
actions must be brought, they won't be brought. Because a remedy 
is denied, defendant will be able to keep thousands and thousands 
of dollars which under our law belong to the members of the plain­
tiff class.

The CPLR was not enacted, we respectfully submit, so 
to sanctify lawlessness.



10

The Prior Decisions

Special Term cited several cases— and we may antici­
pate that defendant will cite more —  in which class actions were 
not permitted. None of these cases, we suggest, is really 
apposite, for none presented the combination we have here: 
thousands of prospective plaintiffs who have been wronged in 
exactly the same way and who all have exactly the same remedy 
and no other. And Special Term failed.to cite this Court's most 
recent class action ruling broadly interpreting CPLR §1005 to 
permit use of the procedure. Llchtyger v. Franchard Corp.,
18 N.Y.2d 528 (1966).

In various cases, this Court has held the class action 
unavailable because the members of the asserted class had been 
wronged in different ways— e.g., different representations had 
made to them, Onofrio v. Playboy Club of New York, 20 A.D.2d 3 
(1st Dep't 1963), reversed on dissent below, 15 N.Y.2d 7^0 (1965); 
Brenner v. Title Guaranty and Trust Company, 276 N.Y. 230 (1937). 
Or there were different factual situations as to each plaintiff—  
e.g., those claiming racial discrimination, Gaynor v. Rockefeller, 
15 N.Y.2d 120 (1965), or reliance on representations, Coolidge 
v. Kaskel, 16 N.Y.2d 559 (1965). Or a class action limited to 
one remedy might deprive members of the plaintiff's class of other 
remedies— e.g., Societe Mlllon Athena v. National Bank of Greece,



11

281 N.Y. 282 (1939). Or defendant might have different factual 
defenses to raise against individual claims, Gaynor v. Rockefeller,
supra.

But none of these differentiating factors is here pres­
ent. Here, all plaintiffs have the same claim— illegally small 
type. And they have only one remedy— that which the Legislature 
has given. In very real terms, there is required here not adjudi­
cation but administration: the simplest and most sensible course 
might well be merely to require defendant to order its computer 
(which has on file the names and addresses of class members) to 
mail out refund checks to all whom it has wronged.

In short: this case satisfies the requirements of the 
plain language of the class action statute. And nothing in the 
prior decisions of this Court precludes applying that language
here.

II.
IMPORTANT CONSIDERATIONS OF PUBLIC 
POLICY SUGGEST ALLOWING A CLASS 
ACTION HERE-_______________ _

Success by plaintiffs in this case, involving type 
size, will not remove all the evils in present-day retail sales 
practices: it will not bring peace to the ghetto nor will it



12

Introduce an era of social justice.*

But the Legislature has perceived at least one vicious 
wrong and afforded a clear remedy. If our society is to be per­
formance rather than mere promise, this legislative plan must 
not be gutted by pointless procedural hocus-pocus.

The language of the Supreme Court in Bell v. Hood, 327 
U.S. 678, 684 (1946), is pertinent:

"[W]here federally protected rights have 
been invaded, it has been the rule from

*For a broad view of the dangerous irritations, indeed dynamite, 
generated by some consumer sales practices, see Matter of the 
State of New York v. ITM, Inc. 52 Misc.2d 39 (1968); Note,
Consumer Legislation and the Poor, 76 Yale L.J. 745 (1967);
Kripke, G*esture and Reality in Consumer Credit Reform, 44 N.Y.U.
L.Rev. 1 (1969): Caplovitz, The Poor Pay More (paperback ed.
1967).
Among the more serious problems are default judgments obtained 
by "sewer service," and the practice whereby sales finance com­
panies supply credit forms to merchants, purchase the commercial 
paper after a credit transaction, and then insist upon "holder 
in due course" status so as to preclude consumer defenses. This 
latter practice, not challenged in this litigation, is presently 
under judicial and administrative attack. See Unieo v. Owens,
50 N.J. 101, 232 A.2d 405 (1967). This summer in New York, the 
Attorney General's office held public hearings to ascertain whether 
legislation is required. Antitrust and Trade Regulation Report, 
September 9, 1969» ut A—21. And the Federal Trade Commission 
has recently indicated it will direct its attention to the prob­
lem. Antitrust and Trade Regulation Report, October 7, 1969, 
at A-25.



the beginning that courts will be alert to 
adjust their remedies so as to grant the 
necessary relief. And it is also well 
settled that where legal rights have been 
invaded, and a federal statute provides 
for a general right to sue for such inva­
sion, federal courts may use any available 
remedy to make good the wrong done."

The importance of making the class action remedy 
available to enforce consumer rights cannot be overemphasized. 
The difficulty and expense of vindicating consumer rights, and 
the ease with which defendants are able to buy off those few 
claimants who learn of and assert their rights, has made those 
rights largely ineffective.

For example, Professor Kripke, long-time counsel to 
the consumer credit industry, has observed that

"The question [of class suits] is of vital 
importance because a broadening of the 
availability of the class suit under state 
procedural systems is one remedy for the 
flood of litigation in which the legal ser­
vices offices are presently engulfed. Its 
use could end the difficulties of which the 
legal services attorneys now complain— that 
the individual cases brought by the small 
percentage of clients who seek redress are 
bought off by settlement, and that the 
oppression continues unchecked for the 
ignorant consumer or one who does not find 
his way to a legal services office."
Kripke, supra, 44 N.Y.U. L.Rev. at 50.

See also, Comment, Translating Sympathy for Deceived Consumers 
into Effective Programs for Protection, 114 U.Pa. L.Rev. 395



(1965); Note Consumer Legislation and the Poor, 76 Yale L.J.

745 (1967).

The class action remedy is, in many respects, the key 
to making reality of consumer rights. Many years ago, Kalven 
& Rosenfeld noted:

"Modern society seems increasingly to expose 
men to such group injuries for which indi­
vidually they are in a poor position to seek 
legal redress, either because they do not 
know enough or because such redress is dis­
proportionately expensive. If each is left 
to assert his rights alone if and when he 
can, there will at best be a random and frag­
mentary enforcement if there is any at all.
This result is not only unfortunate in the 
particular case, but it will operate seriously 
to impair the deterrent effect of the sanc­
tions which underlie much contemporary law."
Kalven & Rosenfeld, The Contemporary Function 
of the Class Suit , 8 U .Chi . L .Rev . 68J], 686 ("19̂ 1)

Ralph Nader has focused upon this particular case:

"In modern mass merchandising, fraud naturally 
takes the form of cheating a great many cus­
tomers out of a few pennies or dollars: the 
bigger the store or chain of stores, the greater 
the gain from gypping tiny amounts from indi­
viduals who would not find it worthwhile to 
take formal action against the seller. Class 
actions solve this problem by turning the ad­
vantage of large volume against the seller 
that made predatory use of it in the first place. 
Poverty lawyers, supported by the U.S. Office of 
Economic Opportunity, are just beginning to use 
thie important technique. A case of great po­
tential significance for developing broad civil 
deterrence has been brought in New York City



against Coburn Corp., a sales finance com­
pany, by two customers who signed its retail 
installment contracts. They are being assisted 
by the NAACP Legal Defense and Educational Fund. 
The plaintiffs charge that Coburn violated Sec­
tion 402 of the New York Personal Property Law 
by not printing its contracts in large type as 
specified by law. They are asking recovery of 
the credit service charge paid under the con­
tracts for themselves and all other consumers 
similarly involved. If the plaintiffs win, 
consumers in New York will be able to bring 
class actions against any violations of law 
contained in any standard form contracts."
Nader, The Great American Gyp, New York Review 
of Books’̂ November 21, 196 8 , p . 27 at 30.

Legal scholars agree that the present case is appro­
priate for the class action remedy. See Dole, Consumer Class 
Actions under Recent Consumer Credit Legislation, 44 N.Y.U. L. 
Rev., 80, 105-106, 114 (1969); Starrs, The Consumer Class Action; 
Considerations of Equity and Procedure, Part 2, 49 B.U. L.Rev. 
407, 455-458 (1969). Cf., Weinstein-Korn-Miller, New York Civil 
Practice, Para. 1005*11 (1963).

The New York City Consumer Affairs Commissioner advised 
a congressional subcommittee this summer of the grant of leave to 
appeal in the present cases and informed it that

"The law of our state and of all states and 
the nation as well, has often been hypocri­
tical as far as the consumer is concerned.
It gives him rights, but then creates economic 
barriers so high that it is impossible to en­
force those rights. It tells him to spend 
thousands of dollars on a law suit to recover 
hundreds of dollars which he lost in a swindle." 
Testimony of Mrs. Grant to the Subcommittee 
on the Improvement of Judicial Machinery, U.S. 
Senate, July 29, 1969.



There is nothing more frustrating, or more poten­
tially inflammatory and dangerous to the fabric of society, 
than to legislate rights into existence, but then to make their 
enforcement impossible. From this perspective, the President's 
Advisory Commission on Civil Disorders has urged that the courts 
take particular care to open their doors to the poor, stating 
that "resourceful and imaginative uses of available legal pro­
cesses could contribute significantly to the alleviation of *** 
tensions." Report, at 152. And William T. Gossett, recently 
president of the American Bar Association, has said,

"If we are to permit trust in a lawful society 
as the straightest and broadest avenue to a 
better society, we must be skillful in struc­
turing all the machinery of the law [for the 
benefit of everyone]." N.Y. Law Journal, p.
1, col. 3, October 29, 1968.

If the Retail Instalment Sales Act and other consumer 
legislation are to be something more than promises made to the 
ear but broken to the heart, the present class actions must be 
permitted.



17

OTHER JURISDICTIONS HAVE READ PARALLEL 
STATUTES SO AS TO PERMIT SIMILAR CLASS 
ACTIONS_______________________________

A dozen jurisdictions have adopted legislation which 
parallels the New York "Field Code" class-action statute.* Many 
of these have construed their statutes to permit maintenance of 
class actions in circumstances like those here.

III.

The leading case is Daar v. Yellow Cab Company, 67 Cal. 
2d 695, 433 P.2d 732 (1967). There, an individual user of taxi­
cabs in Los Angeles was permitted to bring a class action under 
a California statute, C.C.P., Section 382, worded precisely like 
§1005, to recover overcharges on behalf of all taxicab users who 
paid their fares with scrip book coupons. The California Supreme 
Court held that

"To preclude representative litigation [the 
claims] must be separate and distinct in 
the sense that every member of the alleged 
class would have to litigate numerous and 
substantial questions determining his indi­
vidual right to recovery . . . following
the rendering of a ’class judgment' . . .,"
433 P.2d at 741

*Calif. CCP §382; Ohio Rev. Code Ann. §23-0721 (1953); Ark. Stat. 
Ann. §27-809 (1947); Fla. R. Civ. Proc. §1.220; Okla. Stats. Ann. 
§12-233; S.C. Laws §10-205 (1962); Ore. Rev. Stat. §13-170 (1967); 
Conn. Gen. Stats. Ann. §52-105 (I960); Burns Ind. Stats. §2-220 
(1967); Wis. Stats. Ann. §260.12 (1957); Md. Ann. Code Vol. 9B 
rule 209 (1961); N.C. Gen. Stats. §1-70. See Starrs, supra, at
433ff.



18

The court noted that individual litigation would im­
pose multiple burdens upon the parties and the court system, 
and that without resort to the class action device no effective 
remedy was available. It observed that "absent a class suit, 
defendant would retain the benefits from its alleged wrongs."
433 P.2d at 746.

Other jurisdictions have similarly construed "Field 
Code" class action statutes with the same wording as ours. See, 
for example, Robnet v. Miller, 105 Ohio App. 536, 152 N.E.2d 
763 (1957); Duke v. Boyd County, 225 Ky. 112, 7 S.W.2d 839 (1928); 
Skinner v. Mitchell, 108 Kan. 86l, 197 Pac. 569 (1921).

Common law states have likewise permitted broad use of 
the class action remedy in consumer litigation. For example, in 
Holstein v. Montgomery Ward, No. 68 C.H. 275 (111. Sup. Ct. Cook
Co., March 11, 1969), reported in 2 C.C.H. Poverty Law Reporter, 
Para. 9652, pp. 10,784-95 (1969), use of a class action was per­
mitted in a suit on behalf of six million revolving charge account 
customers who alleged that the defendant unlawfully charged them 
for credit life insurance although they had not affirmatively 
asked for it.

Finally, the federal courts have made the class action 
sanctioned by Rule 23(b), F.R.C.P., an invaluable tool in effectu­
ating the rights of people whose individual claims would not support



litigation or would burden the parties and the judicial system. 
See, for example, Eisen v. Carlisle and Jacquelin, 391 F .2d 555 
(2d Cir. 1968) (suit by odd-lot purchasers challenging the stan­
dard odd-lot differential); Dolgow v. Anderson, 43 F.R.D. 472 
(E.D.N.Y. 1968) (class action on behalf of purchasers of stock); 
and Siegel v. Chicken Delight, Inc., 271 F .Supp. 722 (N.D.Cal. 
1967) (suit on behalf of 700 franchisees).

In Eisen, supra, Judge Medina noted that

"Class actions serve an important function 
in our judicial system. By establishing a 
technique whereby the claims of many indi­
viduals can be resolved at the same time, 
the class suit eliminates the possibility 
of repetitious litigation and provides 
small claimants with a method of obtaining 
redress for claims which would otherwise be 
too small to warrant individual litigation 
. .~  [This is particularly important where]
there is no public administrative body that 
could ensure repayment, so the responsibility 
must ultimately rest on the judicial system."
391 F.2d 560, 567 (Emphasis added.)
Of course, these decisions are not binding upon this 

Court. But they do demonstrate the tremendous utility of the 
class action, and they indicate that there is nothing in the 
language of the New York statute or in the concept of the class 
action which requires the denial of the relief sought here.



20

TO DENY THE CLASS ACTION REMEDY HERE 
WOULD DEPRIVE PLAINTIFFS OF THEIR 
CONSTITUTIONAL RIGHTS_______________

The effect of the decision below is to deny plaintiffs, 
as well as the thousands of people who signed identical unlawful 
agreements, an opportunity to use this State's judicial machinery 
to enforce substantive rights granted by the Legislature.

Of course, if plaintiffs had larger individual claims, 
they could easily find counsel to plead for them— a plaintiff 
wealthy enough to purchase a Cadillac under an illegal instalment 
sales contract could press his suit to recover thousands of dollars 
of service charges.

Thus the effect of the decision below is to bar the 
courts to the poor when they are open to the wealthy. Both 
Federal and State constitutions preclude this result.

No state may bar access to its facilities on the basis 
of economic status. Harper v. Virginia Bd. of Electors, 383 U.S. 
663 (1966); Griffin v. Illinois, 351 U.S. 12 (1956): see, also, 
People v. Montgomery, 24 N.Y.2d 130 (1969)• Nor many unessen­
tial procedural requirements be used to obstruct access to the 
courts. Lefton v. City of Hattiesburg, Mississippi, 333 F . 2d 
280 (5th Cir. 1964) (procedures on removal). Appellant's right 
to a day in court, even in a suit for money damages, is a political 
right and a fundamental requisite of due process of law, Railway

IV.



21

Trainmen v. Virginia Bar, 377 U.S. 1 (1964); Mine Workers v.
Illinois Bar Ass'n, 389 U.S. 217 (19 6 7) 5 Schroeder v. New York,
371 U.S. 208 (1962). See Johnson v. Avery, 393 U.S. 483 (1969).

Any barrier to effective implementation of their rights 
by the poor or by those otherwise unable economically to vindi­
cate them is not permissible absent an "appreciable public interest" 
to the contrary. Railway Trainmen v. Virginia Bar, 377 U.S. at 8; 
Lefton v. City of Hattiesburg, Mississippi. None has been sug­
gested in the present case, and none exists.

CONCLUSION

As so often, Cardozo gives us our guide, Falk v. Hoffman, 
233 N.Y. 199, 202 (1922)

"Equity will not be over-nice in balancing 
the efficacy of one remedy against the 
efficacy of another when action will baffle, 
and inaction may confirm, the purpose of 
the wrongdoer."

We ask that the judgments below be reversed.

Respectfully submitted,
PAUL, WEISS, GOLDBERG, RIFKIND, 

WHARTON & GARRISON 
JACK GREENBERG 
PHILIP G. SCHRAG
Attorneys for Plaintiffs-Appellants

Jay H. Topkis
Of Counsel