Kemp v. Rubin Brief for Appellant

    Argued by
A ndrew  D. W einberger

Supreme (Emxrt nx lire lltatc a! 5s cat farb
APPELLATE DIVISION—SECOND DEPARTMENT

— ----- -----f----------—

H arold F. K e m p , S arah M. K e m p , J o h n  H. L utz 
a n d  I rene  L utz, on b eh a lf  of th em selv es  an d  
a ll o th e rs  eq u a lly  in te re s te d ,

Respondents,
against

S o ph ie  R u b in  a n d  S amuel R ichardson ,

Appellants.
-------------------1-------------------

BRIEF SUBMITTED ON BEHALF OF 
APPELLANT SAMUEL RICHARDSON

Statem ent

Defendants-Appellant appeal from a judgment 
of the Supreme Court at Special Term entered in 
Queens County granting a permanent injunction 
against appellants restraining them from consum­
mating a proposed sale of certain real property 
in Addisleigh Park, St. Albans, New York. At 
the close of plaintiff s-respon dents ’ case, appel­
lant Samuel Richardson moved to dismiss the 
complaint on the ground that the complaint does 
not set forth a cause of action. Decision was 
reserved and appellant Richardson thereupon 
rested. The decision of the Special Term later 
denied this motion and it is from this denial and 
the judgment entered thereon that appellant 
Richardson appeals.



2

The following are appellant’s points:

Point I. Judicial enforcement of the racial 
restrictive agreements in suit is prohibited by the 
14th Amendment of the Constitution of the United 
States;

Point II. The Restrictive Covenants in this ac­
tion are void as contrary to the public policy of 
the State of New York;

Point III. The action of the Special Term, by 
having judicially approved an agreement calling 
for racial discrimination, contravenes the United 
Nations Charter which is a part of the Supreme 
Law of the land;

Point IY. The restrictive covenants in this 
action are void as contrary to the public policy 
of the United States.

The Facts

The respondents and appellant Sophie Rubin 
are owner-residents in the area of St. Albans, in 
Queens County known as Addisleigh Park. The 
appellant Richardson owns a parcel of unim­
proved land immediately adjacent to that of 
appellant Rubin. The respondents Kemp and 
appellant Rubin executed a restrictive covenant 
dated January 10, 1939 which bars the sale of the 
properties of the signatories to Negroes or per­
sons of the Negro race or blood or descent until 
1975. The appellant Richardson was not a party 
to this agreement, nor is his vacant adjoining land 
subject to such restrictions.



3

In the spring of 1946, Appellants Rubin and 
Richardson entered into a contract for the sale of 
Appellant Rubin’s property to Mr. Richardson 
and respondents commenced an action for an in­
junction to restrain the consummation of the sale. 
This action culminated in the judgment granting 
such injunction.

P O I N T  I

Judicial enforcem ent o f the racial restrictive 
agreements in  suit is prohibited by the 14th  
Amendment o f the Constitution o f the United 
States.

The injunction secured by the respondents 
is an affirmative act of the judicial arm of the 
government of the State of New York in enforc­
ing a restrictive land covenant which prohibits 
ownership or occupancy of designated lands in 
Addisleigh Park, St. Albans, by any Negro.

In considering the prohibitions and guarantees 
contained in the 14th Amendment to the United 
States Constitution regulating state action and 
their application to the case at bar, it is neces­
sary to primarily determine whether the State 
of New York or any of its political subdivisions 
can, by legislative enactment, accomplish the ob­
jective secured by the decree entered in this ac­
tion.

In making this inquiry, let it be hypothesized for 
the moment that, instead of the action now before 
this Court, the respondents had successfully pe­
titioned the state or a local legislative body for 
special enabling legislation which had accom­
plished the objective sought by this action and



4

had by statute, secured the identical results that 
follow from the decree herein. In accomplishing 
this, respondents would have obtained an affirma­
tive act by the State of New York or a political 
subdivision thereof, acting in its legislative ca­
pacity, countenancing a racially segregated neigh­
borhood such as Addisleigh Park identical in 
effect with the action of the Special Term.

A discussion of such legislation is not idle be­
cause the possibility of its ever coming into being 
is too conjectural or speculative to be pertinent 
to the issue, since the fact is that in more than 
three instances such legislation did achieve reality. 
The Supreme Court of the United States, in the 
3 such causes that were brought to it, evaluated 
such legislation in terms of its relationship to 
the 14th Amendment. Although the laws differed 
in manner of operation, the significant point is 
that they all represented an attempt by a state 
through its legislative body to legalize residential 
segregation by governmental sanction. It is of 
direct and material interest to understand the 
rationale underlying the invalidation of these laws 
by the Supreme Court.

In Buchanan v. Warley, 245 U. S. 60, marking 
the first such case where racial residential segre­
gation was clothed with legislative approval, the 
Supreme Court was called upon to pass upon the 
validity of a city ordinance in the State of Ken­
tucky which forbade any white or Negro person 
from moving into and occupying as a residence, 
any house in a city block in which the majority 
of the houses were already occupied by persons of 
the opposite race. Thus, on its face the statute 
was seemingly susceptible of reciprocal applica­
tion, but the Supreme Court stated nevertheless:



5

“ Colored persons are citizens of the United 
States and have the right to purchase prop­
erty and enjoy and use the same without laws 
discriminating against them solely on account 
of color. These enactments (laws enacted to 
effectuate the 14th Amendment) did not deal 
with the social rights of men, but with those 
fundamental rights in property which it was 
intended to secure upon the same terms to 
citizens of every race and color. The Four­
teenth Amendment and those statutes enacted 
in furtherance of its purpose operate to 
qualify and entitle a colored man to acquire 
property without state legislation discriminat­
ing against him solely because of color.”

In its reference to “ laws enacted to effectuate 
the 14th Amendment” the Court had reference in 
particular to 2 F. C. A. Title 8, Section 42 which 
has been the law of the United States since 1866. 
It reads:

“ All citizens of the United States shall have 
the same right in every State and Territory, 
as is enjoyed by white citizens thereof, to in­
herit, purchase, lease, sell, hold and convey 
real and personal property.”

This statute, together with the 14th Amendment, 
led to the following well-reasoned holding:

“ We think this attempt to prevent alienation 
of the property in question to a person of 
color was not a legitimate exercise of the 
police power of the State, and is in direct 
violation of the fundamental law enacted in 
the Fourteenth Amendment of the Constitu­
tion preventing State interference with prop-



6

erty rights except by due process of law. That 
being the case the ordinance cannot stand.” 
(Buchanan v. War ley, supra)

The Court in response to the contention that the 
ordinance was justified by a desire to “ protect” 
property values revealed the fallaciousness of such 
reasoning by pointing out, that:

“ * * * property may be acquired by unde­
sirable white neighbors or put to disagree­
able though lawful uses with like results.” 
(Buchanan v. Warley, supra)

Subsequently, in Harmon v. Tyler, 273 IT. S. 668, 
legislation permitting the adoption of racial resi­
dential segregation by private action was passed 
in the State of Louisiana through a law forbidding 
whites or Negroes from occupying a residence in 
any portion of the City of New Orleans except 
on written consent of the majority of the persons 
of the opposite race inhabiting such community or 
portion of the city. This ordinance thus extended 
governmental sanction to racial segregation by 
community or neighborhood agreement.

In reliance on this law, suit was brought by a 
white owner of residential property to enjoin 
another white owner in the community from leas­
ing his residence to a Negro tenant. The Supreme 
Court, adhering to Buchanan v. Warley, again 
declared legislative interference with residential 
patterns along lines of color to be violative of the 
14th Amendment’s guarantees and, as such, un­
constitutional.

The Supreme Court has unequivocally expressed 
its intolerance of any legislative attempt by the



7

states to regulate residential segregation. In the 
last of these eases (City of Richmond v. Deans, 
281 IT. S. 704), the Court without opinion simply 
affirmed the decree voiding the ordinance.

It is a well-known fact that Negroes do not make 
restrictive covenants, nor are they ever likely to 
adopt such undemocratic practices. The same is 
true of lawsuits based on restrictive covenants— 
it is in every instance a white person who institutes 
the action. Applying these obvious facts to the 
legislation considered above, it can readily be 
understood that the apparent reciprocity of use 
is as empty a concept as a law is capable of pro­
ducing under the guise of equality. The laws held 
unconstitutional would have been little else than 
tools in the hands of citizens of the white race 
exclusively, to be used against citizens of the 
Negro race whenever any member of the latter 
sought to escape from unsatisfactory housing con­
ditions to an improved home that was otherwise 
available. Such is, of a certainty, not “ equal 
protection of the law. ’ ’

The same inequality is manifest if the inquiry 
as to equality of protection is conducted solely on 
a basis of strict legal reasoning apart from the 
facts as they incontrovertibly do exist.

In this democracy, racial segregation by states 
insofar as public accommodations and services 
are concerned has not, as yet, been declared by the 
Supreme Court to be a denial of equal protection 
of the laws. This is the case notwithstanding the 
glaring inequalities of financial appropriations to 
Negro as contrasted with white schools, hospitals 
and other community services in the states adher­
ing to the “ separate but equal” doctrine. Only



8

theoretically can separate facilities be equal. Ex­
perience and common sense demonstrate that seg­
regation is discrimination. When one considers 
land, even the theoretical possibility of equality 
ceases by reason of the well established equitable 
maxim that each lot of land is unique and cannot 
be either duplicated or equalled. This maxim is 
not a mere legal fiction, but a recognition of fact.

Viewed in light of this traditional equitable 
principle, any state or governmental enactment 
which, in its operation, enables a white person to 
own and occupy a particular piece of realty while 
denying a Negro citizen this fundamental right, is, 
of necessity, a denial of the equal rights which the 
14th Amendment and the laws enacted in pursu­
ance of it rigidly safeguard. No other conclusion 
is logically possible.

It is, therefore, evident that had the respond­
ents secured the legislative sanction hypothesized 
previously to secure their racial residential segre­
gation objective, the legislation whether it was 
direct, as found in Buchananv. Warley (supra,), or 
extended a sort of local option, as in Harmon v. 
Tyler (supra), would be unquestionably repugnant 
to the 14th Amendment and, as such, void.

Having seen that discriminatory acts of the 
legislative arm of government constitute state 
action in violation of the guarantees contained in 
the 14th Amendment, it is pertinent to further in­
quire whether state action of a discriminatory na­
ture is capable of stemming from the acts, decrees 
and orders of the judicial arm of government. If 
the answer be in the affirmative, then the Courts 
of a state are subject to the same limitations im­
posed on the legislative arm.



9

The principle that judicial enforcement, or 
court order, constitutes action by the state is not 
without abundant authority.

In Brinkerhoff-Faris Co. v. Hill, 281 U. S. 673, 
the Supreme 'Court reversed the decision of the 
Supreme Court of Missouri, stating:

“ If the result above stated were attained by 
an exercise of the state’s legislative power, 
the transgression of the due process clause of 
the 14th Amendment would be obvious * * * 
The federal guarantee of due process extends 
to state action through the judicial as well as 
through the legislative, executive or adminis­
trative branch of government.” (Italics 
added.)

So also in Raymond v. Chicago Traction Co., 207 
U. S. 20, where the Supreme Court states, at page 
36:

‘ ‘ The provisions of the 14th Amendment are 
not confined to the action of the state through 
its legislature, or through the executive or ju­
dicial authority. Those provisions relate to 
and cover all the instrumentalities by which 
the state acts.”

Judicial acts constituting state action of a for­
bidden type may be substantive or procedural in 
nature. An examination of the following cases is 
conclusive of the fact that offending judicial acts 
in both categories are prohibited equally.

First in the procedural sphere is Powell v. Ala­
bama, 287 U. S. 45, where the Supreme Court re­
versed a conviction upheld by the highest court 
of the State of Alabama as being state action re­
pugnant to the 14th Amendment, where it was



10

shown that the trial court failed to adequately 
safeguard an accused person’s rights.

Likewise in Brinkerhoff-Faris Go. v. Hill, 
(supra), the Supreme Court set aside the action of 
the State of Missouri acting through its courts, 
saying:

“ We are of the opinion that the judgment of 
the Supreme Court of Missouri must be re­
versed because it has denied to the plaintiff 
due process of law—using that term in its 
primary sense of an opportunity to be heard 
and defend its substantive rights.”

Turning to the substantive field, one finds the 
rule is no different in application. As early as 
1880 the Supreme Court in Ex Parte Virginia, 
100 U. S. 339, since cited by nearly every term 
of the Court as the basic case on state action, held 
that the limitation on state action applies to the 
exercise of the decisional powers of state courts 
as well as to laws enacted by a state legislature. 
The Court said at page 347:

“ Whoever by virtue of public position under 
a state government deprives another of prop­
erty, life or liberty, without due process of 
law, or denies or takes away the equal pro­
tection of the law violates the constitutional 
inhibition; and as he acts in the name and for 
the state is clothed with the state’s power, his 
act is that of the state. This must be so, 
or, as we have often said, the constitutional 
prohibition has no meaning, and the state has 
clothed one of its agents with power to annul 
or evade it.”



11

So also in Tunning v. New Jersey, 211 U. S. 78, 
where the court said:

“ The judicial act of the highest court of the 
state in authoritatively construing and en­
forcing its laws is the act of the state.”

And there is abundant authority that court ac­
tion is state action not only when it is construing 
statutes but the common law as well.

In Cantwell v. Connecticut, 310 IT. S. 296, the 
Supreme Court reversed a conviction on the 
ground that, the common law of Connecticut as in­
terpreted and applied by the courts was a denial 
of due process by state action contrary to the 14th 
Amendment. Similarly, in Bridges v. California, 
314 IT. S. 252, the Supreme Court reversed a con­
tempt sentence on the ground that the state court 
improperly interpreted the common law so as to 
infringe upon the guarantees of the 14th Amend­
ment.

In American Federation of Labor v. Swing, 
312 U. S. 321, the Court stated, at page 326:

‘ ‘ The scope of the Fourteenth Amendment is 
not confined by the notion of a particular state 
regarding the wise limits of an injunction in 
an industrial dispute.”

It seems fallacious to assume that a suit for a 
permanent injunction is private action, since in 
granting such injunctive relief, this Court has 
clearly been acting for the state. This Court is 
not,a private arbitrator. It is the state, and every 
piece of enforcement machinery belonging to the 
State of New York is at its disposal to compel 
compliance with its decrees. This is the more 
easily realized by considering the fact that racial



12

restrictive covenants are not self-enforcing, but 
depend absolutely upon judicial decree.

Since it is true that the courts are bound to ob­
serve the limitations imposed by the 14th Amend­
ment as are other branches of the state govern­
ment, then upon reviewing the result in the hy­
pothetical situation propounded at the outset 
herein, it is further apparent that since any leg­
islative attempt to segregate residential areas on 
the basis of color is state action offensive to the 
14th Amendment (Buchanan v. Warley; Harmon 
v. Tyler, supra) the same result cannot be accom­
plished by the judiciary. State otherwise, the 
unavoidable conclusion is, that citizens of a state 
are equally powerless to permit its courts to ac­
complish an objective which the Supreme Court 
of the United States will not permit a state to 
accomplish by permissive or direct legislation.

This conclusion was long ago established in 
Gandolfo v. Hartman, 49 Fed. 181, decided in 
1892, wherein the Court stated:

“ It would be a very narrow construction of 
the constitutional amendment in question and 
the decisions based on it and a very restricted 
application of the broad principle upon which 
both the amendment and the decisions pro­
ceed to hold that while state and municipal 
legislatures are forbidden to discriminate 
against the Chinese in their legislation, a 
citizen of the state may lawfully do so by con­
tract which the courts may enforce * * #. Any 
result inhibited by the Constitution can no 
more be accomplished by contracts of indi­
vidual citizens than by legislation and the 
court should no more enforce the one than 
the other.”



13

Ye,ry recently (1945) in Anderson v. Auseth, 
Los Angeles (Cal.) Superior Court (No. 48408— 
not reported) the complaint in an action by white 
property owners to enforce a restrictive covenant 
against Negroes, was held to state no cause of 
action in that the enforcement of the covenant by 
the court would be unconstitutional in depriving 
the defendants of the equal protection of the law 
guaranteed by the 14th Amendment, Mr. Justice 
Thurmand Clark said:

“ This court is of the opinion that it is time 
that members of the Negro race are accorded, 
without reservation and evasions, the full 
rights, guaranteed them under the 14th 
Amendment of the Federal Constitution.”

The same Court added, by way of dictum:
“ Judges have been avoiding the real issue 
for too long. Certainly there was no discrim­
ination against the Negro race when it came 
time to calling upon its members to die upon 
the battlefields in defense of this country in 
the war just ended.”

It has been contended that, in New York State, 
the case of Ridgway v. Cockburn, 163 Misc. 511, 
decided that the enforcement of racial restrictive 
covenants did not contravene the 14th Amend­
ment. It is therefore necessary to examine this 
case to ascertain if such contention is correct.

Ridgway v. Cockburn drew for its support on 
the Supreme Court case of Corrigan v. Buckley, 
271 U. S. 323, which case has similarly been used 
by a few other state courts as precedent for the 
proposition that judicial enforcement by a state 
court does not violate the 14th Amendment.



14

Westchester County Special Term in Ridgway v. 
Cockburn misconstrued Corrigan v. Buckley as 
controlling and made no further inquiry. The 
opinion shows this. In its four page opinion all 
that is said concerning constitutionality is :

“ (2) C o n st it u t io n a l it y . The second de­
fense is to the effect that the enforcement of 
the covenant would deprive the defendant of 
her property without due process of law, and 
would deny her the equal protection of the 
laws, in violation of the federal constitution, 
and in particular of the Fourteenth Amend­
ment. It is sufficient to say that the United 
States Supreme Court has held that a cove­
nant of this precise character violated no 
constitutional right (Corrigan v. Buckley, 271 
U. S. 323).”

But even the most cursory examination of Cor­
rigan v. Buckley upon which that decision relies 
reveals two essential reasons why it is not an 
adjudication on the question of judicial enforce­
ment. The constitutionality of judicial enforce­
ment was not properly raised on appeal and, ac­
cordingly, the issue was not before the court for 
determination as the court distinctly held. Sec­
ondly, the question of judicial enforcement as vio­
lative of the 14th Amendment could not possibly 
have been settled by Corrigan v. Buckley for the 
actual, though often unnoticed, fact is that the 
action originally arose in the District of Colum­
bia and it is undisputed that the provisions of 
the 14th Amendment are addressed only to the 
states and not to the District of Columbia or the 
federal government where only the 5th Amend­
ment is applicable and which contains no equal 
protection clause.



15

The court in Ridgway v. Cockburn, 163 Misc. 
511, actually had no precedent to rely on in deter­
mining the question, and since the court saw fit to 
adopt for precedent what actually is non-existent 
as precedent and could not have been precedent, 
the learned court cannot be said to have even con­
sidered the constitutional question. Conse­
quently, Ridgway v. Cockburn and any state deci­
sion on the question of judicial enforcement which 
relies on Corrigan v. Buckley, is without legal 
basis. It is not without significance that no de­
cree or judgment was entered in Ridgway v. Cock­
burn and that the defendant continued to occupy 
the premises.

The plain and inescapable fact is that this ques­
tion has never been decided by the Supreme 
Court of the United States. Nor has it been be­
fore any New York State appellate court.

The Special Term, relying as it did upon non­
existent precedent and by refusing to follow the 
authority actually in point, has extended, in con­
travention of the 14th Amendment, an option to 
residents of a designated area in Addisleigh Park 
to determine its racial character. There is no dis­
tinction between this result and that sought to be 
achieved in Harmon v. Tyler (supra) and with 
the Supreme Court of the United States having 
repeatedly forbidden such results by state action, 
any method enlisting state support which accom­
plishes it must also be prohibited.

For further consideration of the constitutional 
problems raised by this action, the attention of 
this Court is invited to the following authorita­
tive and exhaustive articles:

“ ‘Validity of Anti-Negro Restrictive Cove­
nants : A Reconsideration of The Problem’ ”



16

By Harold I. Kahen (12 Univ. of Chicago 
Law Review 198, 1945).
“ ‘Racial Residential Segregation By State 
Court Enforcement of Restrictive Agree­
ments, Covenants Or Conditions In Deeds Is 
Unconstitutional’ By Prof. D. 0. McGovney 
(33 California Law Review 5, 1945).”

P O I N T  I I

The restrictive covenants in this action are 
void as contrary to the public policy o f the State 
o f New York.

No more fundamental a principle is the sub­
ject of universal recognition in law than that 
judicial assistance cannot be granted where to do 
so would contravene the settled public policy ap­
plicable to the circumstances.

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. Gilman, 84 Misc. 372, 146 
N. Y. Supp. 224 (1914)).

Notwithstanding the seeming clarity of the prin­
ciple, 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 formu­
lated and that it is thus incapable of independ­
ently forming the basis of a decision.



17

The effects of the apparent indiscriminate in­
termingling of public policy with statutory law as 
one and the same, compels a detailed examination 
of the subject, if the error on this point in the Spe­
cial Term’s judgment and the fallacies inhering 
in respondent’s argument are to be seen. In mak­
ing such an examination, the subject lends itself 
to a threefold classification, to wit:

(a) Public Policy as a concept, distinguished 
from the statutes upon which it is, in part, 
predicated;
(b) The application of public policy as an 
independent rule of law;
(c) The interaction of the public policy of 
New York upon the restrictive covenants at 
bar.

In delving further into a comprehensive anal­
ysis of public policy under subdivision (a) above, 
appellant, notwithstanding its seeming length, has 
taken the liberty of quoting, in its entirety, an 
appropriate portion of a scholarly opinion ren­
dered in the neighboring state of Ohio. It is not 
without significance that this excerpt, as it ap­
pears 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 Wanamaker beginning 
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



18

deed the term is as difficult to define with ac­
curacy as the word ‘fraud’ or the term ‘public 
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 rela­
tion and situation.
Sometimes such public policy is declared by 
constitution; sometimes by statute; some­
times by judicial decision. More often, how­
ever, it abides only in the customs and con­
ventions of the people—in their clear con­
sciousness and conviction of what is naturally 
and inherently 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 justice, 
such course of conduct must be held to be ob­
viously 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



19

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
sions of the constitution, we say it is pro­
hibited by the constitution not by public 
policy. When a contract is contrary to stat­
ute, we say it is prohibited by a statute, not 
by public 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. 
Public policy is the cornerstone—the founda­
tion—of all constitutions, statutes and judicial 
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 public 
policy? There was no precedent for it, else 
it would not have been the first.” (Accord: 
Synder v. Ridge Hill Memorial Park, 61 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); Heath v. 
Heath, 159 A. 418, 421 (1932); Girard Trust 
Co. v. Schmitz 129 N. J. Eq. 444, 20 A. 2d 21 
(1941)). (Italics added.)

Public policy, thus, is greater than any specific 
statute 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 com­
ponent part. Yet, the reluctance has frequently 
expressed itself, as has been the case with the 
Special Term, to regard public policy as a rule, 
apart and of itself, capable of forming the in­
dependent basis of a decision.



20

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 
afford affirmative relief by way of injunction, con­
trary to settled public policy solely because spe­
cific statutory prohibition is lacking?” And fur­
ther: “ Is not a court absolutely bound to apply 
the rule of public policy when the statute is si­
lent?”

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 and they point out that California stat­
utes forbidding racial discrimination by pri­
vate persons relate only to certain specifically 
enumerated businesses such as inns, restaur­
ants and the like, but not to labor unions * * #. 
It was well established at common law that

♦



21

inn-keepers and common carriers were under 
a dnty to furnish accommodations to all per­
sons, in absence of some reasonable ground 
# * and if colored persons are furnished
accommodations they must be equally safe, 
commodious and comfortable * * * The an­
alogy of the public service cases not only 
demonstrate a public policy against racial 
discrimination but also refutes defendant’s 
contention that a statute is necessary to en­
force 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 constitution 
and statutes, the courts have supplied in a 
way the deficiencies of positive law by orig­
inating the doctrine of ‘public policy’ and so 
applying it as to hold void and decline to



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 par­
ticular instance no injury to the public may 
have resulted, and no positive statute be 
violated” (citing People v. Hawkins, 157 
N. Y. 1, 51 N. E. 257, 42 L. R. A. 490)

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 legis­
lative function. The Special Term 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 upon the restrictive covenant 
at bar, it is necessary to avoid narrowing the sub­
ject to racial restrictive covenants, apart and of 
themselves, and in doing so overlooking the prin­
cipal issue, namely, discrimination on the basis 
of race and color. Just as we have no public 
policy confined to burglary, but rather to crime in 
all its aspects, one cannot divorce the object of 
the agreement forming the basis of this action 
from the overall question of racial discrimination.



23

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 
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 upon a discriminatory agree­
ment, to ascertain first whether a public policy on 
the subject exists and, if so, its scope. As stated 
in Mertz v. Mertz, 271 N. Y. 466), and numerous 
other decisions, the public policy of a state may 
be determined largely by reference to the statutes 
in force.

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

“Alcoholic Beverages Control Laiv—Section 
65

Forbids discrimination because of race, creed 
or color in the sale o,r 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 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
titled to the full and equal accommodations, 
advantages, facilities and privileges of such 
places.



24

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 
refusing 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 Law—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 origin in civil service.
Education Law—Section 920
Prohibits refusal to admit to or exclusion 
from any public school on account of race, 
creed, color or national origin.

Insurance Law—Section 209 (3)
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



25

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 dis­
crimination 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, common 
carriers or operation of amusement places or 
by teachers or officers of public institutions of 
learning.

Penal Law—Section 700
Forbids discrimination against any person 
because of race, creed, color or national ori­
gin in Ms civil rights.

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 
colored persons in life insurance rights and 
benefits.



26

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

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 ori­
gin 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 pub­
lic policy in this state on that subject. Moreover, 
the language in the preamble to Executive Law, 
Section 125 (the last above listed), is, of itself, so 
explicit a statement of the official state attitude, 
as to almost dispense with necessity for further 
inquiry. The preamble of Section 125 reads, in 
part:

“ * * * 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.”



27

It is not without significance that one may ob­
serve that the above-quoted section is without res­
ervation or qualification, but represents solely an 
exceptionally decisive overall condemnation of 
discrimination on the basis of race, creed or color, 
regardless of source.

In addition to the foregoing, there is the further 
consideration of the existence of a section in the 
Constitution of the State of New York (Art. 1 
Sec. 11) which likewise condemns racial discrim­
ination in the broadest possible terms. The sec­
tion reads:

“ No person shall be denied the equal protec­
tion of the laws of this state or any subdivi­
sion thereof. No person shall, because of 
race, color, creed or religion, be subjected to 
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.” (Italics added.)

No person can, in the face of such an abundance 
of evidence, seriously contend that the unalter­
able public policy of this state is other than the 
denunciation of practices of racial discrimination. 
Even respondents have not gone so far as to chal­
lenge the correctness of such a conclusion. The 
divergence of opinion does arise when the public 
policy is sought to be applied to their restrictive 
covenants.

At the Special Term, respondents cited an im­
pressive list of proposed bills which would, upon 
passage, have specifically outlawed their covenant. 
At the conclusion of this, they pointed out that 
none of the bills was enacted and that where the 
Legislature of this state has failed to enact a pro­



posed statute, its subject matter may not be read 
into the law by implication. It is upon this theory 
alone, that respondents have urged the conclusion 
that their racial restrictive covenant does not 
violate the public policy of the State of New York.

It is submitted that the only conclusion logically 
following upon such an argument is that respond­
ents’ racial restrictive covenant is not in violation 
of any specific statute or constitutional amend­
ment. But to contend that this state’s inescapable 
public policy, finding its source in over twenty in­
dividual anti-discrimination laws approves one 
type of discrimination solely by reason of statu­
tory silence, is to indulge in the fallacious reason­
ing discussed at an earlier point in this brief. It 
is to ascribe to public policy a legal effect no 
greater than the individual directives of each stat­
ute taken by itself. As has been shown earlier 
herein, the concept of public policy is not so nar­
row.

If one again examines James v. Marinship Cor­
poration {supra), and Georgia Fruit Growers Ex­
change v. Turnipseed, supra, the arguments ad­
vanced by respondents become more thoroughly 
defeated, for in those cases it was expressly held 
that a statute is not necessary to enforce a well- 
settled public policy where private rather than 
public action is involved and that where the pub­
lic 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 pol­
icy. This conclusion was affirmed in Camp-Of- 
The Pines v. New York Times Co., 184 Misc. 389,



29

53 N. T. Supp. 2d 475 (1945) where the Supreme 
Court in passing upon the applicability of Civil 
Eights 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, so­
cial and economic ostracism.”

In turning to the case of Ridgway v. Cockburn, 
163 Misc. 511 (1937), upon which the Special 
Term in the instant case relied, in part, as. a basis 
for its decision that public policy did not render 
it incapable from supporting the covenant by in­
junction, one finds the same error in law. As 
did the respondents here, the Special Term in 
Ridgway v. Cockburn (supra), found no positive 
law outlawing such covenants and, deeming pub­
lic policy as identical with each individual statute, 
concluded that no public policy existed in this state 
so as to require a denial of injunctive relief.

With the number of legislative utterances on 
the subject of racial discrimination having more 
than doubled since 1937, when Ridgway v. Cock- 
burn (supra)was decided, it is today even more 
fallacious to reject the unquestionably well es­
tablished policy of this state by the single ab­
sence of a statute. On this point the courts have 
likewise spoken.

In Waddey v. Waddey, 290 N. Y. 251, 493 N. E. 
2d 8 (1943) Mr. Justice Eippey speaking for the 
Court of Appeals, stated:

“ The public policy of the State of New York 
as determined and recorded by the Legisla­
ture may not be changed and rewritten by a



30

court to satisfy its own private notice of what 
the public policy of the State ought to be.”

In Cahill v. Gilman, 84 Misc. 372, 146 N. Y. 
Supp. 224 (1914) the Supreme Court in Kings 
County likewise ruled that:

“ The test by which the courts determine 
whether a given act or contract is or is not 
against public policy does not rest in the 
mere individual opinion of the judge who is 
called upon to decide the question, otherwise 
different judges might reach different con­
clusions upon the same state of facts, accord­
ing to their complexional views of the ab­
stract morality of the question.”

In summarizing the position of appellant, 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 
by leaving parties who would violate the policy 
of the law by private compacts, powerless to en­
force them.

Fourth: That the public policy of this state is 
on record as being unquestionably against racial



31

discrimination and admits of no exceptions, loop­
holes or excuses in its. blanket condemnation.

Fifth: That the Special Term of this court in 
Queens County, by having granted affirmative re­
lief, has ruled erroneously on the legal connota­
tions of public policy and has, as a subdvision 
of the State of New York, itself contravened this 
state’s own policy as well as extending this power 
to private persons, without which they would be 
unable to do likewise.

P O I N T  I I I

The action o f the Special Term, by having ju­
dicially approved an agreement calling for ra­
cial discrimination, contravenes the United Na­
tions Charter which is a part o f the supreme law 
o f the land.

Article VI, Clause 2 of the Constitution of the 
United States reads:

“ The Constitution, and the Laws of the 
United States which shall be made in Pur­
suance thereof; and all Treaties made, or 
which shall be made, under the Authority of 
the United States, shall be the supreme Law 
of the Land and the Judges in every State 
shall he hound thereby, anything in the Con­
stitution or Laws of any State to the Contrary 
notwithstanding.” (Italics added)

It is a fundamental and immutable rule of law 
that a treaty entered into by the United States 
with another, or other nations supersedes all that 
may conflict with its spirit and letter. It is no idle



32

inquiry, as will be shown by direct case reference 
further on, to consider the action of the Special 
Term in relationship to treaties to which the 
United States is a signatory and which have direct 
bearing on the subject of racial discrimination.

The scope and applicability of treaties to affairs 
seemingly domestic, has been the subject of con­
siderable judicial comment. During the course of 
these decisions there has gradually evolved an 
accepted recognition of the effect of treaties upon 
the citizen’s everyday life. If one examines a 
few of the more widely known cases of the Su­
preme Court of the United States on the subject of 
treaty application, it can readily be observed that 
a racial restrictive covenant is not so domestic a 
matter as to be without the realm of a treaty of 
the United States.

In Kennett v. Chambers, 14 How. 38, the Su­
preme 'Court affirmed the supremacy of the treaty 
by denying the right to specific performance 
(judicial enforcement) of a contract which, if en­
forced would be repugnant to the objectives of 
treaties with Mexico. Mr. Justice Taney, speaking 
for the Court, at page 46, stated:

“ These treaties, while they remained in force 
were, by the Constitution of the United States, 
the Supreme law, and binding not only upon 
the government, but upon every citizen. No 
contract could lawfully be made in violation 
of their provisions.”

Reasoning further, the Court pointed out that:
‘ ‘# * * as the sovereignty resides in the people, 
every citizen is a portion of it, and is him­
self personally bound by the laws which the



33

representatives of the sovereignty may pass, 
or the treaties into which they may enter, 
within the scope of their delegated authority.”

In Missouri v. Holland, 252 U. S. 416, 64 L. Ed. 
641, the Supreme Court upheld the Migratory 
Bird Treaty Act (5 F. C. A. Title 16 Section 703), 
a federal law enacted pursuant to the Migratory 
Bird Treaty between the United States and Great 
Britain, as overriding state law, on the ground 
that the treaty making power, unlike the legis­
lative power is not limited to any concept of 
powers constitutionally reserved to the states. It 
is significant to note that the legislation in issue 
was upheld, even though similar legislation, en­
acted prior to the execution of the treaty, had been 
pronounced an improper exercise of Congressional 
authority under the commerce clause of the Con­
stitution. (cf. U. 8. v. Shauver, 214 Fed. 154; 
U. 8. v. McCullagh, 221 Fed. 288.)

A like outcome took place in Hauenstein v. Lyn- 
ham, 100 U. S. 483, where the descent and distribu­
tion laws of the State of Virginia were overridden 
under the supremacy of an existing treaty af­
fecting a national of Switzerland. Similarly, in 
Nielson v. Johnson, 279 U. S. 47, the provisions 
contained in a treaty between the United States 
and the government of Denmark held precedence 
over inheritance tax statutes of the State of Iowa.

In DeGeofrey v. Riggs, 133 U. S. 258, the terms 
of a treaty with France received precedence over 
conflicting rules of inheritance of real property in 
the District of Columbia. In U. S. v. Pink, 315 
U. S. 203, New York law yielded to the Litvinov 
Agreement between the United States and the 
Soviet Union relating to the assets of a liquidated 
Russian insurance company.



34

Thus, one finds the influence of United States 
treaties reaching beyond matters arising solely 
between nation and nation. In 1892, a federal 
court invalidated a racial restrictive covenant 
similar to the one before this court, which called 
for the exclusion of Chinese from private prop­
erty otherwise available to them, by reason of the 
supremacy of a treaty of the United States with 
China. The text of this decision has been quoted 
in part earlier herein, cf. Gandolfo v. Hartman 
(supra) at page 12.

On August 8, 1945, the United States became a 
signatory to the United Nations Charter which 
solemnly committed the United States, as a mem­
ber of the United Nations, to observe and be bound 
by its articles. Among these articles is Article 
55 (c) which reads:

“ * # # the United Nations shall promote * * * 
uniform respect for, and observance of, human 
rights and fundamental freedoms for all with­
out distinction as to race, sex, language and 
religion. ’ ’

Following this, Article 56 reads:
“ All members pledge themselves to take joint 
and separate action in cooperation with the 
organization for the achievement of the pur­
poses set forth in Article 55.”

These pledges are the supreme law of the land 
and there is imposed by these treaties a solemn 
and absolute obligation upon every governmental 
organ in this country to affirmatively prevent dis­
crimination in the enumerated categories.



35

This commitment was observed recently by an­
other member of the United Nations when the Su­
preme Court of Ontario, Canada, in Re Drum­
mond Wren, Ontario Reports, 1945 page 778, re­
moved a land covenant containing the restriction:

“ Land not to be sold to Jews or persons of 
obj ectionable nationality. ’ ’

In voiding this covenant, Judge Mackay, speak­
ing for the court, found the continued observance 
of the restriction to be completely inconsistent 
with the pledges in the United Nations Charter 
set out above.

Since racial restrictive agreements of the type 
before the court are clearly discriminatory in that 
they effect a deprivation upon citizens of one race, 
while having no application whatever to another, 
it becomes immediately apparent that the action 
of any judicial body which supplies governmental 
enforcement by injunction or other order, lends 
the strength to a discriminatory agreement with­
out which respondents could not achieve their un­
democratic objectives.

The action of the Special Term, by its order of 
injunction, has furnished the sine qua non of this 
particularly cruel form of racial discrimination. 
In having* issued such a decree, the Special Term 
did not observe the supreme law of the land as 
contained in the United Nations Charter.

An examination of the opinion rendered by the 
Special Term shows that its decision, that the 
racial restrictive agreement at bar is not in vio­
lation of the United Nations Charter, was based 
solely upon Article 2, Section 7 of that treaty which 
provides, in part:



36

“ Nothing contained in the present Charter 
shall authorize the United Nations to inter­
vene in matters which are essentially within 
the domestic jurisdiction of any state or shall 
require the members to submit such matters 
to settlement under the present charter * * *” 
(Italics added.)

The construction of this section by the Special 
Term was such as to override and invalidate the 
pledges elsewhere contained in Articles 55 (c) and 
56. Yet, careful scrutiny of this Article 2, section 
7, relied on by the. Court, reveals the use of such 
words as “ intervene” and “ submit” . The plain 
meaning of this section is solely to divest the 
United Nations, as a forum, from concurrent jur­
isdiction to adjudicate disputes essentially domes­
tic. Nowhere, can one see any language, nor draw 
any reasonable inference, that this section has 
the function of relieving the signers of this treaty 
from the fullest observance of its terms. There 
has been found no decision or opinion which will 
support the conclusion of the Special Term to the 
effect that this treaty has nothing to do with do­
mestic matters, for, as has been shown earlier, the 
application of a treaty touches wherever indi­
vidual or governmental action takes place on mat­
ters within its scope. The language of the United 
Nations Charter expressly shows that racial dis­
crimination, whatever its form, is in conflict with 
a body of law constituting the supreme law of the 
land.



37

P O I N T  I V

The restrictive covenants in  this action are 
void as contrary to the public policy o f the 
United States.

The Constitution and federal statute and case 
law reveal the policy of the federal law as being 
clearly in condemnation of practices of discrim­
ination based upon racial and religious differ­
ences. Moreover, the federal law is unique in 
having on its statute books specific legislation 
that is both declaratory of the policy of the law 
and directly in conflict with a restrictive covenant 
based upon ethnic differences.

This legislation, 2 F. C. A. Title 8, Section 42, 
reads:

“ All citizens of the United States shall have 
the same right in every State and Territory, 
as is enjoyed by white citizens thereof to in­
herit, purchase, lease, sell, hold and convey 
real and personal property.” (Italics sup­
plied.)

Section 43, following this, reads:
“ Every person who, under color of any sta­
tute, ordinance, regulation, custom or usage, 
of any State or Territory, subjects or causes 
to be subjected, any citizen of the United 
States or other person within the jurisdiction 
thereof to the deprivation of any rights, priv­
ileges or immunities secured by the Consti­
tution and laws, shall be liable to the party 
injured in an action at law, suit in equity, or 
other proper proceeding for redress.” (Ital­
ics added.)



38

The incidents of real and personal property are 
civil rights with which all citizens of the United 
States are endowed by common law. Section 42 
however, goes on to supplement this basic rule of 
law by its statement that the same rights in prop­
erty which white persons enjoy are to be appli­
cable to colored citizens. Section 43 implements 
this by providing for legal redress in damages for 
all who are denied or discriminated against in the 
enjoyment of the rights of an American citizen 
by reason of color.

Elsewhere, the Supreme Court has reaffirmed 
the settled policy of the laws of the federal gov­
ernment to be equal in application. In Strauder 
v. West Virginia, 100 U. S. 303, the Supreme 
Court in commenting upon the purpose of the 
14th Amendment, stated:

“ What is this (the 14th Amendment) but de­
claring that the law in the States shall be the 
same for black as for the white; that all per­
sons, whether colored or white, shall stand 
equal before the laws of the States; and, in 
regard to the colored race, for whose protec­
tion the Amendment was primarily designed, 
that no discrimination shall be made against 
them by law because of their color? The 
words of the Amendment, it is true, are pro­
hibitory, but they contain a necessary im­
plication of a positive immunity, or right 
most valuable to the colored race—the right 
to exemption from unfriendly legislation 
against them distinctly as colored; exemption 
from legal discriminations, implying inferi­
ority in civil society, lessening the security 
of their enjoyment of the rights which others



39

enjoy, and discriminations which are steps 
toward reducing' them to the condition of a 
subject race.” (Italics added.)

A. contemporary declaration by the Supreme 
Court of the unchanged continuity of federal pol­
icy was expressed with similar fo.rcefulness in 
Hirabayashi v. United States, 320 U. S. 81; Mr. 
Justice Murphy stating, in a concurring opinion, 
at pages 110 and 111:

“ Distinctions based on color and ancestry 
are utterly inconsistent with our traditions 
and ideals. They are at variance with the 
principles for which we are now waging war. 
* * * Nothing is written mo,re firmly into our 
law than the compact of the Plymouth voyages 
to have just and equal laws” .

It is worthy of note that the Special Term pre­
faced its opinion with the foregoing quotation 
declaring the existing federal policy, and having 
done so, then declared the restrictive covenants 
before it to be completely consistent with this 
policy. Faced with this pronouncement of the 
policy of the United States on the subject of racial 
discrimination by the nation’s highest court, the 
Special Term then proceeded to supply, with its 
injunction, the only weapon whereby respondents 
could bring about a fruition of their attempt to 
compel another to participate in a plan of racial 
discrimination.

The basic error underlying this misapplication 
and restriction of the scope of federal public pol­
icy was pointed out in a dissenting opinion in 
Mays v. Burgess, 147 Fed. 2d 869 where Judge 
Edgerton in commenting upon the Fair Employ­



40

ment Practices Commission as being in harmony 
with federal policy, said, at page 875:

“ I can see no sufficient distinction from the 
point of view of policy, between discrimina­
tion in employment and discrimination in 
housing. ’ ’

The public policy which condemns “ distinctions 
based on color” as utterly inconsistent with the 
American way of life is not so hollow as to oppose 
one form of racial discrimination and approve 
another. Yet, the opinion of the Special Term so 
holds, and it is submitted that its decision on this 
point is erroneous in law.

In discussing Title 8, Section 42 of the United 
States Code at a previous point, it was stated 
that, apart from its aid as a determinant of public 
policy, its language as well, was in direct conflict 
with the covenant before this court.

If this Section confers, as it does, upon colored 
persons the same right to “ inherit, purchase, 
lease, sell, hold, and convey” real property as is 
enjoyed by white persons, when one considers the 
obvious fact that any white person may freely 
purchase, lease or otherwise acquire the property 
of appellant Sophie Rubin, upon what basis, it 
must then be asked, can an agreement be enforced 
which denies all colored persons these rights. If 
colored persons actually have the same rights as 
white persons with regard to the enumerated inci­
dents of property, then the injunction against ap­
pellant Richardson prevents him from the exer­
cise of a right expressly secured to him by Section 
42 (supra) namely, the right to purchase real 
property on the same basis as is enjoyed by white



41

persons. Thus, the Special Term has achieved a 
result expressly forbidden by federal law, as well 
as by the terms of Article I, Section 11 of the 
Constitution of the State of New York and has 
rendered a decision entirely at variance with the 
public policy of this nation as expressed in its Con­
stitution, treaties, statutes and its abundance of 
court decisions.

T h e  im p o r ta n c e  o f  th is  a p p e a l  n o t  o n ly  to  a p ­
p e l la n t  R ic h a rd so n , b u t  to  th e  p r e s e rv a t io n  o f  
d e m o c ra tic  p r in c ip le s .

One of the pressing needs of Negroes in this 
city, and nation as well, is adequate housing. This 
is not a temporary condition fostered by wartime 
adjustments, but represents a neglected condi­
tion existent for many years. In West Harlem, 
a section comprising one-sixteenth of the total of 
Manhattan’s area, more than one-tenth of the 
borough’s population resides. On one Harlem 
city block (141st Street between Lenox and Sev­
enth Avenues) there are housed 3,871 people in 
buildings wholly unfit and incapable of support­
ing them. This, incidentally, is the highest dwell­
ing density in any comparable area in the world. 
(The Urban Negro: Focus of the Housing Crisis 
—Real Estate Reporter, October, 1945, page 12, 
citing the Mayor ’s Committee on City Planning.) 
Commenting upon this, Edwin Embree in his book 
“ Brown Americans” (Viking Press), said at page 
34:

“ Comparable concentration for the entire 
population would result in all of the people 
in the United States living in one half of New 
York City.”



42

This fact is even further aggravated by the 
prevalence of higher rentals in all Negro neigh­
borhoods for comparable accommodations in 
white communities. In the recent scholarly and 
authoritative treatise, An American Dilemma 
(Harper & Brother), by Dr. Gfunnar Myrdal, it is 
said at Vol. 1, page 379:

“ We feel inclined to believe that rents are 
higher, on the average, in Negro than in 
white occupied dwelling units even when size 
and quality are equal. Most housing ex­
perts and real estate people who have had 
experience with Negro housing have made 
statements to this effect. Not only does there 
seem to be consensus on the matter among 
those who have studied the Negro housing 
problem, but there is also a good logical rea­
son for it: housing segregation. ”

There is presently a continuous inmigration 
of Negroes to New York City from the South. 
They are influenced by both the desire to live in 
the better economic status of the North, and also 
in an atmosphere free from lynchings, depriva­
tion of the franchise, discrimination and segre­
gation.

It is common knowledge that the already over­
taxes facilities of greater New York are hope­
lessly inadequate. The situation is substantially 
more acute for Negroes than for white persons. 
Aside from the legal unsoundness and the social 
viciousness of restrictive covenants, one must 
consider the economic burden that it places upon 
the Negro by forcing him to pay higher rents and 
occupy inadequate accommodations. Concerning 
this, Myrdal, at Yol. 1, page 379, said.



43

“ Particularly when the Negro population is 
increasing in a city, it is hard to see how this 
factor can fail to make Negro rents increase 
to an even greater extent than would have 
been the case if Negroes had been free to seek 
accommodations wherever in the city they 
could afford to pay the rent. The fact that 
they are not wanted where they have not al­
ready been accepted must put them in an 
extremely disadvantaged position in any ques­
tion of renting or of buying a house. ’ ’

Queens County with its large tracts of unim­
proved property has for many years been an es­
cape and release from crowded Manhattan for 
scores of both white and colored citizens. Queens 
County, even more than any of the other suburban 
areas of New York City, should afford similar 
opportunity to Negroes for home ownership, 
which is well-nigh impossible for anyone in Man­
hattan. Queens County has taken thousands of 
white persons from the undesirable residential 
conditons of Manhattan (and we include the dark, 
sunless Park Avenue apartments in this category) 
and as a matter of both sound law and equity, the 
Negro may not be deprived of the same elemen­
tary privilege of a human being. Even in those 
instances when suburban home ownership is pos­
sible for a Negro, he again pays more for compar­
able accommodations than his white equal.

The November, 1945 issue of the Building Re­
porter cmd Realty News, in its second installment 
of its survey The Urban Negro: Focus of the 
Housing Crisis, says at page 11:

“ This view was supported by other local 
spokesmen, who reported Queens housing is



44

sold to Negroes only when values have al­
ready begun to decline. Negroes, in search 
of housing, must take what they can get, so, 
at somewhat inflated prices, they buy these 
properties.”

In a best selling book entitled “ Inside U. S. A.” 
(Harper & Brother, 1947) which represents an 
overall report of social, economic and political 
characteristics observable in the United States, 
the distinguished author John Gunther made the 
following observation, at page 285:

‘ ‘ The most pressing negro issue in the North 
is housing. Negroes in Chicago, in Detroit, 
in Pittsburgh live in what are in effect ghettos. 
These are not as a rule directly established 
by the municipality; they rise through re­
strictive covenants set up by white landlords, 
many of them absentee. A real estate group 
or local association of landowners will, for 
instance, get every owner in a district to sign 
a contract limiting, say, tenancy to “ people 
not of African descent” for a period of years. 
Negroes have protested the legality of this, 
but unsuccessfully on the whole. The result 
of such closing off of negroes from opportuni­
ties in housing is, first of all, the equivalent 
of segregation in the South; the negro com­
munity is forcibly cooped up in whatever dis­
tricts it now inhabits, and cannot spread no 
matter how much it multiplies. This, in turn, 
means that schools in the closed area become 
solidly negro, exactly like the segregated 
schools in the South; it means congestion, 
violently high rents, the perpetuation of 
slums, breakdown in municipal facilities like



45

street repair and garbage disposal, hoodlum- 
ism, especially among the young, and serious 
problems in police and fire protection.”

It can be seen that the importance of this ap­
peal is not the concern of appellant Richardson 
alone. It is the vital concern of every white and 
colored person in this state, for it is society that 
must bear the cost of the overcrowded segregated 
community which the restrictive covenant en­
genders. The people of this state cannot and 
must not allow the anachronistic will of a few to 
deprive thousands of citizens from the oppor­
tunity to live in dignity and peace with one 
another on a plane of equality in fundamental 
rights.

CONCLUSION

The complaint does not state a cause o f action, 
the judgment should be reversed and the com­
plaint dismissed.

Respectfully submitted,

A n d rew  D . W ein b er g er ,
Attorney for Defendant- 

Appellant Samuel Richardson.

A ndrew  D. W ein b er g er  and 
V e r t n e r  W . T andy , Jr.,

Of Counsel.



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