Novick v. Levitt & Sons, Inc. Brief of Plaintiffs-Appellants

    Argued by
A ndrew D. W einberger

fork ^oprrmr (Emtrt
A ppellate  Division— Second Department

Gertrude Novick and Julius Novick, 
A dolph R oss and L illian R oss,

Plaintiffs-Appellants,

against

Levitt & Sons, I nc.,
Defendant-Respondent.

----------- — » —i ------ -

BRIEF OF PLAINTIFFS-APPELLANTS

Statement

Plaintiffs - Appellants appeal from an Order 
which granted the Motion of Defendant-Respond­
ent, made pursuant to Rule 106 of the Rules of 
Civil Practice, to dismiss the Complaint herein 
on the ground that upon the face thereof it does 
not state facts sufficient to constitute a cause of 
action. The order appealed from was made by 
the Supreme Court of New York, Special Term 
Part II, Nassau County, and entered in the Office 
of the Clerk of Nassau County on the 1st day of 
March 1951.

The following are the points of the Plaintiffs- 
Appellants:

Point I. There is no right in a landlord to 
invoke the aid of a state court to enforce the land-



2

lord’s prohibition against use of the premises by 
persons other than Caucasians.

A. The Fourteenth Amendment to the Fed­
eral Constitution precludes state court en­
forcement of a private prohibition against 
use of premises by persons other than Cauca­
sians.

B. The public policy of this state and of 
the United States precludes state court en­
forcement of a private prohibition against 
the use of premises by persons other than 
Caucasions.

The Fact*

Appellants are the tenants of certain premises 
owned by the Bespondent in a housing develop­
ment of some 10,000 homes built by Bespondent 
and known as Levittown in Nassau County. The 
Bespondent has an announced policy of refusing 
to lease any of its premises in Levittown to 
Negroes, and has a prohibition against the use of 
the premises by persons other than Caucasians.

The Appellants are all white persons.
In July of 1950, the Appellants invited certain 

Negro children to play with their children on the 
lawns of their premises. Immediately thereafter, 
on August 3,1950, Bespondent sent a letter to the 
Appellants advising them that upon the expira­
tion of their leases on November 30, 1950, same 
would not be renewed and that they would be re­
quired to vacate the premises and upon failure 
to do so legal proceedings would be immediately 
instituted. The Appellants had not breached any 
of the provisions of their leases and the Bespond-



3

ent gave no reason in writing for refusing to 
renew said leases.

On the 29th day of November 1950, the Appel­
lants commenced an action against the Respond­
ent in the Supreme Court, Nassau County, for 
declaratory judgment and temporary and perma­
nent injunction. In their complaint they alleged, 
among others, the above facts and that the Re­
spondent sought to evict them from their prem­
ises for the reason that the Appellants invited 
Negro children to play with their children on the 
lawn of said premises in violation of Respondent’s 
prohibition.

This is all conceded by the pleadings as the 
Respondent moved under Rules of Civil Practice 
106 and has not answered. Accordingly, Respond­
ent may not argue that it need not say why it is 
bringing a summary proceeding. It has admitted 
that the summary proceeding was brought solely 
because the Appellants had Negro children as 
guests.

The motion of Appellants for a temporary in­
junction was denied on December 19,1950.

On December 21, 1950, the Respondent com­
menced a Summary Proceeding to evict the Ap­
pellants in the District Court of Nassau County, 
First District. This proceeding is pending at 
issue.

On the 27th day of December 1950, the Respond­
ent moved to dismiss the complaint herein, pur­
suant to Rule 106 of the Rules of Civil Practice, 
upon the ground that the complaint failed to state 
facts sufficient to constitute a cause of action upon 
the face thereof. The motion to dismiss was



4

granted on the 1st day of March, 1951. The 
Memorandum Opinion of Mr. Justice Cuff is at 
folios 82-96 of the Papers on Appeal.

The Issue

The court below in its Memorandum Opinion 
completely misconstrued the issue raised by the 
Appellants in this case. In this action, the Ap­
pellants do not question the right of the Respond­
ent to select its own tenants or lessees. The ques­
tion raised by the Appellants is whether the land­
lord has a right to the aid of the judicial arm of 
the state to evict the tenants for the reason that 
the tenants invited Negro children to play with 
their children on the premises in violation of the 
landlord’s prohibition against the use of said 
premises by persons other than Caucasians.

POINT I

There is no right in a landlord to invoke the 
aid of a state court to enforce the landlord’s 
prohibition against use of the premises by 
persons other than Caucasians.

A. The Fourteenth Amendment to the Federal 
Constitution precludes state court enforcement 
of a private prohibition against use of leased 
premises by persons otber tban Caucasians

The Appellants in their Complaint allege that 
the Respondent threatened to invoke the aid of a 
court to evict them from their premises for the 
reason that the Appellants had, by inviting Negro 
children to play with their children on said prem­



5

ises, violated the Respondent’s prohibition against 
the use of the premises by persons other than 
Caucasians. The Complaint prayed for a declara­
tion of the rights of the parties and prayed for an 
injunction restraining the Respondent from pro­
ceeding with the threatened eviction against the 
Appellants on the ground alleged.

Upon moving to dismiss the Complaint upon 
the ground that it fails to state facts sufficient to 
constitute a cause of action upon its face, the 
Respondent admitted, and the court below in its 
Memorandum Opinion held, that the factual alle­
gations for the purposes of said motion and the 
inferences that naturally flow therefrom pleaded 
in the complaint are deemed established. Locke 
v. Pembroke, 280 N. Y. 430.

The Appellants contend that the facts alleged 
in their Complaint are sufficient to constitute a 
cause of action for the reason that the courts of 
this state are powerless to aid Defendant-Re­
spondent in evicting them for the reason alleged, 
cf. Shelley v. Kraemer and Sipes v. McGhee, 334 
U. S. 1 (1948).

That the Fourteenth Amendment to the Federal 
Constitution prohibits state action, whether it be 
action by the state’s legislative, judicial, or ad­
ministrative arm, which results in a denial of the 
equal protection of the laws to any person because 
of the race and color of such person is no longer 
open to question. Virginia v. Rives, 100 U. S. 
313, 318; Ex parte Virginia, 100 U. S. 339, 347; 
Civil Rights Cases, 109 U. S. 3, 11, 17; Brinker- 
hoff-Faris Trust and Sav. Co. v. Hill, 281 U. S. 
673, 680; Shelley v. Kraemer and Sipes v. McGhee, 
supra.



6

That such discriminatory state action results 
from judicial enforcement of purely private dis­
crimination was established by the United States 
Supreme Court after many years of doubt in 1948 
in Shelley v. Kraemer and Sipes v. McGhee.

In the Shelley and Sipes cases the Supreme 
Court said that a private agreement which is dis­
criminatory as against third parties solely on the 
grounds of race and color might be entered into 
by private individuals and that such conduct was 
not affected by the Fourteenth Amendment, but 
when a party to such an agreement invoked the 
aid of a state court to enforce same, the action 
of the court in enforcing such agreement is state 
action. The respondents in those cases argued 
that property owners who are parties to such 
agreements would be denied the equal protection 
of the laws if denied access to the courts to en­
force the terms of these agreements. In response 
to this the Court said at page 22:

“ Nor do we find merit in the suggestion 
that property owners who are parties _ to 
these agreements are denied equal protection 
of the laws if denied access to the courts to 
enforce the terms of restrictive covenants 
and to assert property rights which the state 
courts have held to be created by such agree­
ments. The Constitution confers upon no in­
dividual 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 
property interests must be exercised within 
the boundaries defined by the Fourteenth 
Amendment, cf. Marsh v. Alabama, 326 
U. S. 501 (1946).”  (Italics ours.)



7

The Court in an unanimous decision held that in 
granting judicial enforcement of private racial 
restrictive covenants the states were denying to 
third persons, in those cases Negroes, the equal 
protection of the laws and, therefore, the action 
of such state courts could not stand.

Thus private individuals may enter into agree­
ments which are discriminatory as against third 
persons and such agreements, standing alone, do 
not infringe upon the rights guaranteed to other 
persons by the Federal Constitution. But when 
it is sought to give effect to such agreement or to 
enforce its terms, same can only be effected 
through the use of state power, and since same 
can only be made effective through the use of 
state power, the private agreement given effect 
becomes the action of the state.

In the instant case, the Respondent seeks the 
aid of the courts of this state to evict the Plain­
tiffs-Appellants from their homes in order to give 
effect to the Defendant-Respondent’s prohibition 
against the use of the premises by persons other 
than Caucasians. The reasoning of the United 
States Supreme Court in the restrictive covenant 
cases cited above, Shelley v. Kraemer and Sipes 
v. McGhee, supra, is fully applicable to this case. 
In this case, as in the restrictive covenant cases, 
the discriminatory prohibition of Respondent can 
be given effect only by invoking “ the full panoply 
of state power” . Without the “ full coercive 
power of government” , the prohibition of the Re­
spondent herein would be devoid of force or ef­
fect in this case. That is, when a tenant violates 
the prohibition against the use of the premises 
by persons other than Caucasians, the Respond­
ent cannot retaliate by eviction without the aid of



8

the state. Thus the eviction of the Appellants for 
the reason that they allowed persons who are not 
Caucasians to use the premises would be the ac­
tion of the state. And as the Court said in the 
restrictive covenant cases, the Fourteenth Amend­
ment is not ineffective in a situation such as this 
simply because the particular discrimination 
which the State has enforced is the result initially 
of the actions of private individuals. The Court 
said at page 20:

“ Nor is the Amendment ineffective simply 
because the particular pattern of discrimina­
tion, which the State has enforced, was de­
fined initially by the terms of a private agree­
ment. State action, as that phrase is under­
stood for the purposes of the Fourteenth 
Amendment, refers to exertions of state 
power in all forms. And when the effect of 
that action is to deny rights subject to the 
protection of the Fourteenth Amendment, it 
is the obligation of this Court to enforce the 
constitutional commands. ’ ’

In Kemp v. Rubin, 297 N. Y. 955 (1948), the 
Court of Appeals reversed the Appellate Divi­
sion, Second Department, which affirmed the judg­
ment of Queens County Special Term granting an 
injunction against violation of a similar racial re­
strictive covenant. In reversing said judgment, 
the Court of Appeals relied upon the United 
States Supreme Court’s decision in Shelley v. 
Kraemer and Sipes v. McGhee, supra.

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 and the Appel­
lants in the instant case do not question that right 
in this action. But once the Respondent has let



9

its premises, the Appellants question its right to 
the aid which is afforded by the judicial arm of 
the state to evict such tenants for the reason that 
the tenants have allowed the premises to be used 
by persons other than Caucasians.

B. The public policy of this state and of the United 
States precludes state court enforcement of a 
prohibition against the use of  leased premises 
by persons other than Caucasians

Public policy as a concept of law has been suc­
cinctly defined as:

. . the principle of law that no one can 
lawfully do that which has a tendency to be 
injurious to the public or against the public 
good.”  (Cahill v. Oilman, 84 Misc, 372.)

Notwithstanding the seeming clarity of the 
principle, its method of application frequently 
remains obscured, particularly where statutory 
enactment on all phases of a given subject is 
either absent or so lacking in exactitude as to 
lead to the unsound conclusion that public policy 
is not wholly formulated and that it is thus in­
capable of independently forming the basis of a 
decision.

The effects of the apparent indiscriminate in­
termingling of public policy with statutory law 
as one and the same, compels a detailed exami­
nation of the subject, if the error on this point 
in the judgment is to be seen. In making such 
an examination, the subject lends itself to a three­
fold classification, to wit:

(a) Public Policy as a concept, distin­
guished from the statutes upon which it is, 
in part, predicated;



10

(b) The application of public policy as an 
independent rule of law;

(c) The interaction of the public policy of 
New York and of the United States upon the 
case at bar.

We have taken the liberty of quoting at length 
from an appropriate portion of a scholarly opin­
ion rendered in the neighboring state of Ohio. 
It is not without significance that this excerpt, as 
it appears here, has been adopted for their own, 
by the courts of at least three other jurisdictions.

In Pittsburgh, C., C. <& St. L. Railway Co. v. 
Kinney, 95 Ohio St. 64, 115 N. E. 505, L. C. A. 
1917 D 641, 643 (1916), Justice W anamaker, begin­
ning at page 67, wrote:

“ What is the definition of ‘ public policy’ ? 
A correct definition, at once concise and com­
prehensive, of the words ‘ public policy’ has 
not yet been formulated by our courts. In­
deed the term is as difficult to define with ac­
curacy as the word ‘ fraud’ or the term ‘ pub­
lic welfare’. In substance it may be said to 
be the community common sense and common 
conscience, extended and applied throughout 
the state to matters of public morals, public 
health, public safety, public welfare and the 
like. It is that general and well-settled pub­
lic opinion relating to man’s plain, palpable 
duty to his fellow men, having due regard to 
all the circumstances of each particular re­
lation and situation.
Sometimes such public policy is declared by 
constitution; sometimes by statute; sometimes 
by judicial decision. More often, however, it 
abides only in the customs and conventions 
of the people—in their clear consciousness 
and conviction of what is naturally and in-



11

herently just and right between man and man. 
It regards the primary principles of equity 
and justice and is sometimes expressed under 
the title of social and industrial justice, as it 
is conceived by our body politic.
When a course of conduct is cruel or shock­
ing to the average man’s conception of jus­
tice, such course of conduct must be held to 
be obviously contrary to public policy, though 
such policy has never been written in the 
bond, whether it be constitution, statute or 
decree of court.
It has frequently been said that such public 
policy is a composite of constitutional pro­
visions, statutes and judicial decisions and 
some courts have gone so far as to hold that 
it is limited to these. The obvious fallacy 
of such a conclusion is quite apparent from 
the most superficial examination.
When a contract is contrary to some provi­
sion of the constitution, we say it is pro­
hibited by the constitution, not by public pol­
icy. When a contract is contrary to statute, 
we say it is prohibited by statute, not by pub­
lic policy. When a contract is contrary to a 
settled line of judicial decisions, we say it is 
prohibited by the law of the land, but we do 
not say it is contrary to public policy. Pub­
lic policy is the cornerstone—the founda­
tion—of all constitutions, statutes and judi- 
ical decisions; and its latitude and longitude, 
its height and its depth, greater than any or 
all of them. If this be not true, whence came 
the first judicial decision on matters of pub­
lic policy? There was no precedent for it, 
else it would not have been the first.”  (Ac­
cord: Snyder v. Ridge Hill Memorial Park, 
81 Ohio App. 271, 288, 22 N. E. 2d 559, (1938); 
Adopted: Skutt v. City of Grand Rapids, 275 
Michigan 258, 264, 266 N. W. 346 (1936); 
Girard Trust Co. v. Schmitz, 129 N. J. Eq. 
444, 20 A. 2d 21 (1941).



12

Public policy is greater than any specific stat­
ute or decision on a particular aspect of a given 
subject, for it represents the aggregate, of which 
each statute or individual rule is but a component 
part. Yet, reluctance has frequently been ex­
pressed to regard public policy as a rule, apart 
and of itself, capable of forming the independ­
ent basis of a decision.

Much has been said by courts against judicial 
legislation. That the courts will not do what the 
legislature has not seen fit to do, has become a 
settled maxim and in many instances the facts 
justify such attitude on the part of the courts. 
But the question presents itself: “ May a court 
proceed contrary to settled public policy solely 
because specific statutory prohibition is lacking?”  
And further: “ Is not a court absolutely bound 
to apply the rule of public policy when the stat­
ute is silent?”

The latter question was expressly passed upon 
in a California decision in 1944. In James v. 
Marinship Corporation, 25 Cal. 2d 721, 155 P. 2d 
329, 160 A. L. R. 900, the court held:

“ The discriminatory practices involved in 
this case are, moreover, contrary to the public 
policy of the United States and this State. 
The United States Constitution has long pro­
hibited governmental action discriminating 
against persons because of race or color. 5th, 
14th and 15th Amendments. * * * Although 
the constitutional provisions have been said 
to apply to state action rather than to private 
action, they nevertheless evidence a definite 
national policy against discrimination because 
of race or color. Defendants contend that 
‘ Individual invasion of individual rights ’ can 
be prohibited only by a statute of the state



13

and they point out that California statutes 
forbidding racial discrimination by private 
persons relate only to certain specifically 
enumerated businesses such as inns, restau­
rants and the like, but not to labor unions 
* * *. It was well established at common 
law that inn-keepers and common carriers 
were under a duty to furnish accommodations 
to all persons, in absence of some reasonable 
ground * * * and if colored persons are fur­
nished accommodations they must be equally 
safe, commodious and comfortable * * *. The 
analogy of the public service cases not only 
demonstrate a public policy against racial dis­
crimination but also refutes defendant’s con­
tention that a statute is necessary to enforce 
such a policy where private rather than public 
action is involved.”  (Italics added.)

That a court may apply the existing rule of 
public policy without transgressing upon legisla­
tive functions, finds further support in the well- 
reasoned opinion in Georgia Fruit Growers Ex­
change v. Turnipseed, 9 Ala. App. 123, 62 So. 542 
(1913). The court said, at page 128:

“ Public policy, however, is broader than the 
mere terms of the Constitution and statutes 
and embraces their general purpose and 
spirit. Constitutions are born of the people, 
and statutes made (including the positive 
rules of common law adopted) in pursuance 
thereof emanate, of course, from legislative 
sources, all designated for the public good; 
but, where they are silent in terms and do 
not of their own force vitiate contracts detri­
mental to the public interest or welfare, as 
may be outlined in, and as is to be determined 
alone, from, a general view of such constitu­
tion and statutes, the courts have supplied in 
a way the deficiencies of positive law by 
originating the doctrine of ‘ public policy’ and 
so applying it as to hold void and decline to



14

enforce executory contracts which though not 
violating the terms, yet violate the general 
spirit and policy of the law as expressed in 
the Constitution and statutes.”

It was the court’s conclusion that:
“  Where a contract belongs to this class it will 
be declared void, although in the particular 
instance no injury to the public may have re­
sulted, and no positive statute be violated”  
(citing People v. Hawkins, 157 N. Y. 1).

It is evident that a decision consistent with a 
settled rule of public policy is not, in the absence 
of statutory mandate, usurpation of the legislative 
function. The lower court would not have been 
engaging in judicial legislation if it applied the 
public policy of this State to the case at bar, in the 
absence of express statutory direction, for as the 
statute is absent but the public policy is not, the 
court is under an equally affirmative duty to apply 
the latter rule.

In examining the remaining classification in 
this inquiry, namely, the interaction of the public 
policy of this State and of the United States to 
the case at bar, it is necessary to avoid narrow­
ing the subject to the right of a landlord to se­
lect his own tenants and in doing so overlooking 
the principal issue, namely, race discrimination. 
Just as we have no public policy confined to bur­
glary, but rather to crime in all its aspects, one 
cannot divorce the purpose of the threatened evic­
tion forming the basis of this action from the 
overall question of racial discrimination.

It is either the policy of this state to oppose 
racial discrimination wherever and however it 
manifests itself or, the state is so lacking in the



15

formulation of a settled will as to have no policy 
on the subject at all. It thus becomes necessary, 
if one is to consider the interaction of the public 
policy of this state and of the United States on 
the case at bar, to ascertain first whether a pub­
lic policy on the subject exists and, if so, its scope. 
As stated in Merts v. Merts, 271 N. Y. 466, and 
numerous other decisions, the public policy of a 
state may be determined largely by reference to 
the statutes in existence.

New York has the following impressive list of 
statutes currently in force, all aimed solely at 
eliminating racial discrimination:

Alcoholic Beverages Control Law—Section 65
Forbids discrimination because of race, creed 
or color in the sale or delivery of alcoholic 
beverages.

Civil Rights Law—Section 13
Forbids disqualification to serve as a grand 
or petit juror on account of race, color, creed, 
national origin or sex.

Civil Rights Law—Section 18 (a)-(e)
Prohibits discrimination in all publicly-as­
sisted housing accommodations and declares 
such discrimination to be against public pol­
icy.

Civil Rights Law—Section 40
Prohibits discrimination because of race, 
color, creed or national origin in places of 
public accommodation, resort or amusement, 
and provides that all persons shall be en­



16

titled to the full and equal accommodations, 
advantages, facilities and privileges of such 
places.

Civil Rights Law—Section 40 (a)

Prohibits any inquiry concerning religion or 
religious affiliation of persons seeking em­
ployment or official position in public schools.

Civil Rights Law— Section 42
Prohibits any public utility company from re­
fusing to employ any person on account of 
race, creed, color or national origin.

Civil Rights Law—Section 43
Forbids any labor organization to deny any 
person membership or deny any member 
equal rights on account of race, creed, color 
or national origin.

Civil Rights Laiv—Section 44
Forbids any industry involved in defense con­
tracts to discriminate in employment on ac­
count of race, color, creed or national origin.

Civil Service Law—Section 14(b)
Forbids discrimination on account of race, 
color, creed or national original in civil serv­
ice.

Education Law—Section 3201
Prohibits refusal to admit to or exclusion 
from any public school on account of race, 
creed, color or national origin.



17

Insurance Law—Section 209 (5)

Prohibits discrimination between white and 
colored persons in the issuance of life insur­
ance.

Judiciary Law-Section 460

Provides that race, creed, color, national 
origin or sex shall not constitute cause for 
refusing any person examination or admis­
sion to practice as an attorney.

Labor Law—Section 220 (e)

Requires all contracts on behalf of the state 
or municipality for the construction, altera­
tion or repair in any public building or pub­
lic work to maintain a clause against discrimi­
nation in employment because of race, creed, 
color or national origin.

Penal Law—Section 514

Forbids any discrimination by reason of race, 
color, creed or national origin in any public 
employment or employment in any capacity 
in industries engaged in defense contracts, 
or any accommodation by innkeepers, com­
mon carriers or operation of amusement 
places or by teachers or officers of public in­
stitutions of learning.

Penal Law—Section 700

Forbids discrimination against any person 
because of race, creed, color or national origin 
in his civil rights.



18

Penal Law—Section 772 (a)
Forbids any deprivation of public relief or 
work relief because of race, creed, color or 
national origin.

Penal Law—Section 1191
Forbids discrimination between white and col­
ored persons in life insurance rights and bene­
fits.

Public Housing Law—Sections 201 and 223
Forbids any discrimination in public housing 
because of race, creed, color or national 
origin.

Tax Law— Section 4

Forbids tax exemption to any education cor­
poration or association which holds itself out 
as non-sectarian but denies its facilities to 
any person because of race, color or religion.

Executive Law—Section 125 et seq.

Prohibits discrimination in employment on 
account of race, color, creed or national 
origin by employers, labor organizations and 
employment agencies.

It cannot be said that this imposing array of 
statutory expression on the subject of racial dis­
crimination does not emphatically declare the 
public policy in this state on that subject.

The language in the preamble to Executive 
Law, Section 125 (the last above listed), is, of 
itself, an explicit statement of the official state 
policy, namely:



19

“ * * * the legislature hereby finds and de­
clares that practices of discrimination against 
any of its inhabitants because of race, creed, 
color or national origin are a matter of state 
concern, that such discrimination threatens 
not only the rights and proper privileges of 
its inhabitants but menaces the institutions 
and foundations of a free democratic state.”

The language of the Findings and Declarations 
of Policy in the Civil Eights Law, Section 18-a 
(listed above), is, another unequivocal statement 
of the public policy of the state.

“ 1. This article shall be deemed an exercise 
of the police power of the state for the protec­
tion of the welfare, health and peace of the 
people of this state and the fulfillment and 
enforcement of the provisions of the constitu­
tion of this state concerning civil rights.
“ 2. The practice of discrimination because 
of race, color, religion, national origin or an­
cestry in any publicly assisted housing ac­
commodations is hereby declared to be against 
public policy. Added L. 1950, c. 287, eff. July 
1, 1950.”

This is forthright language without reserva­
tion or qualification. It is an exceptionally de­
cisive overall condemnation of discrimination on 
the basis of race, creed or color, regardless of 
source.

The Constitution of the State of New York 
(Art. 1, Sec. 11) likewise condemns racial dis­
crimination in the broadest possible terms. It 
reads:

“ No person shall be denied the equal protec­
tion of the laws of this state or any sub­
division thereof. No person shall, because of 
race, color, creed or religion, be subjected to



20

any discrimination in his civil rights by any 
other person or by any firm, corporation or 
institution or by the state or any agency or 
subdivision thereof. ’ ’

A statute is not necessary to enforce a well- 
settled public policy where private rather than 
public action is involved and where the public 
policy is clear the deficiencies of positive law must 
be supplied by the courts.

This is not judicial legislation, but rather the 
application of the policy of the law on a given 
subject so as to effectuate and uphold that policy. 
This conclusion was affirmed in Camp-Of-The- 
Pines v. New York Times Co., 184 Misc. 389, 
where the Albany Special Term in passing upon 
the applicability of Civil Rights Law, Section 40, 
to a “ restricted clientele”  notice, held:

“ Every effort is made, and should be made 
to prevent, so far as is humanly possible, 
social and economic ostracism. ’ ’

Like the public policy of the State of New York, 
the public policy of the United States is also one 
which is opposed to racial discrimination. Hurd 
v. Hodge and Urciolo v. Hodge, 334 U. S. 24 
(1948).

In Hurd v. Hodge, supra, and Urciolo v. Hodge, 
supra, the United States Supreme Court denied 
to federal courts the power to enforce private 
racial restrictive covenants on the ground that 
same would contravene the public policy of the 
United States. The Court said at page 34:

“ But even in the absence of the statute, there 
are other considerations which would indicate 
that enforcement of restrictive covenants in 
these cases is judicial action contrary to the



21

public policy of the United States, and as 
such should be corrected by this Court in the 
exercise of its supervisory powers over the 
courts of the District of Columbia. The power 
of the federal courts to enforce the terms of 
private agreements is at all times exercised 
subject to the restrictions and limitations of 
the public policy of the United States as 
manifested in the Constitution, treaties, fed­
eral statutes, and applicable legal precedents. 
Where the enforcement of private agreements 
would be violative of that policy, it is the 
obligation of courts to refrain from such ex­
ertions of judicial power.

AVe are here concerned with action of fed­
eral courts of such a nature that if taken by 
the courts of a State would violate the pro­
hibitory provisions of the Fourteenth Amend­
ment. It is not consistent with the public 
policy of the United States to permit federal 
courts in the Nation’s capital to exercise gen­
eral equitable powers to compel action denied 
the state courts where such state action has 
been held to be violative of the guaranty of 
the equal protection of the laws. We cannot 
presume that the public policy of the United 
States manifests a lesser concern for the pro­
tection of such basic rights against discrimi­
natory action of federal courts than against 
such action taken by the courts of the States.

The Supreme Court in Shelley v. Kraemer, 
supra, and Sipes v. McGhee, supra, held that state 
court enforcement of private racial restrictive 
covenants was prohibited by the Fourteenth 
Amendment to the federal constitution. It did 
not, because it could not, hold that such enforce­
ment violated the public policy of the states in­
volved for the simple reason that the public 
policy of a state must be determined by its own 
courts. As pointed out above, the public policy



22

of this state is clearly one which is opposed to 
racial discrimination.

In summary, it may be said:
First: That the principle of public policy is

not synonymous with any one statute but repre­
sents the policy of the law on a given subject as 
compounded from the Constitution and statutes 
taken together as a whole.

Second: That where the policy of the law has 
been clearly formulated, a court is bound to ef­
fectuate this policy although no specific statute 
can be pointed to as a basis for its decision.

Third: That a court is not legislating judicially 
when, in being called upon to enforce private 
prejudice which is repugnant to the settled public 
policy of the state, it refuses to do so.

Fourth: That the public policy of this state
and of the United States is on record as being 
unquestionably against racial discrimination and 
admits of no exceptions, loopholes or excuses in 
its blanket condemnation.

The effect of Respondent’s prohibition is clearly 
to discriminate against Negroes, as the tenants 
under this prohibition are permitted to invite 
white persons or Caucasians to use the premises 
but not Negroes. Therefore, when the Respondent 
seeks to evict the Appellants concededly for the 
reason that the latter invited Negro children to 
play with their children, the Respondent is seek­
ing to do that which is clearly repugnant to the 
public policy of this state and of the United States; 
that is, it is seeking to enforce or give effect to a 
policy of racial discrimination.



23

CONCLUSION

The Court below erroneously ruled that Ap­
pellants’ Complaint stated no cause of action. 
The judgment of dismissal should be reversed, 
with costs.

Respectfully submitted,

Robert L. Carter,
Constance Baker Motley, 
Jack Greenberg and 
A ndrew D. W einberger, 

Attorneys for Plaintiffs-Appellants.



JU D IC IA L  P E IST L N G  C c . .  32

(4161)