308 N.Y. 112 | NY | 1954
Lead Opinion
If this appellant, who was not only an officer, but the sole active manager and actual owner of this corporation, did not “ knowingly permit ” his corporation to fail to pay its workmen’s wages, then it is hard to see how anyone could, as an officer, violate section 1272 of the Penal Law. “ Knowingly ” (see Penal Law, § 3, subd. 4) means merely a knowledge of the existence of the facts constituting the crime. To “ permit ” means to allow to happen, to fail to prevent (see Cowley v. People, 83 N. Y. 464; People ex rel. Price v. Sheffield Farms Co., 225 N. Y. 25, 31). Certainly, defendant knew the workmen were not paid, and he permitted it in the sense that, knowing
The judgment should be affirmed.
Dissenting Opinion
(dissenting). Subdivision 2 of section 196 of the Labor Law requires every person carrying on a business to pay weekly to each employee the wages earned to a day not more than six days prior to the date of such payment. Violation of this statutory duty is made a misdemeanor by section 1272 of the Penal Law. In the case of officers of a corporate employer, it was held in People v. Grass (257 App. Div. 1) that liability does not attach unless an officer has aided and abetted the corporation in committing this violation of the Labor Law. By chapter 809 of the Laws of 1941, however, section 1272 of the Penal Law was amended by adding a substantive clause that ‘‘ the officers of any such corporation who knowingly permit the corporation to violate the labor law by failing to pay the wages of any of its employees in accordance with the provisions thereof ” are also guilty of a misdemeanor. Two of the Justices who sat at the Appellate Division dissented from an affirmance of the conviction of appellant, an officer of a corporation which violated this duty, “ on the ground that the People failed to establish beyond a reasonable doubt that the individual defendant ‘ knowingly ’ permitted the corporation to violate the Labor Law by failing to pay the wages in question.”
The ground thus stated by the dissenting Justices at the Appellate Division is persuasive. The conviction of appellant can only stand if subdivision 2 of section 196 of the Labor Law and section 1272 of the Penal Law, read in conjunction with each other, are construed to render this crime malum prohibitum in the case of an officer as well as in that of a corporate employer. Under the ruling in People v. Primrose Wet Wash Laundry Co. (256 App. Div. 1088), an individual employer or a corporate employer would be liable, in event of neglect to pay wages earned within six days, regardless of any knowledge or intent. When
The judgment appealed from should be reversed, and the information dismissed, in view of the absence of proof that appellant permitted these employees to work for this corporation with knowledge that their wages would not be paid.
Lewis, Ch. J., Desmond, Dye, Fuld and Fboessel, JJ., concur in Per Curiam opinion; Van Voobhis, J., dissents in an opinion in which Conway, J., concurs.
Judgment affirmed.