Matter of Mazzarella v. Kern

The provision of the statute that a city "acquiring and owning and operating a transit facility shall continue to employ all employees of any corporation theretofore owning or operating such transit facility * * * who shall have been in the employ of said corporation for one year or more immediately prior to such acquisition and who shall be citizens or shall have filed declarations of intention to become citizens heretofore or within six months after this act takes effect" does not make citizenship or declaration of intention to become a citizen a condition precedent to the establishment of the relationship of employer and employee between the city and an employee of the corporation who would otherwise be qualified, but is a requirement that any person who is not a citizen must file a "declaration of intention to become a citizen" within six months after the act takes effect in order to authorize the city to continue the employment beyond that time. Concededly, if the words of the statute are given a narrow, technical construction no employee can comply with this requirement within the specified time.

This court has said that "It is an accepted maxim that the law does not seek to compel a man to do that which he cannot possibly perform. (Broom's Legal Maxims [4th ed.], 178.) And this reasonable rule has been applied in many cases. (Harmony v.Bingham, 12 N.Y. 99; Matthews v. American Central Ins. Co.,154 N.Y. 449, 463; Herter v. Mullen, 159 N.Y. 28, 39, 43;Buffalo L. Land Co. v. Bellevue L. I. Co., 165 N.Y. 247, 254.)" (Walden v. City of Jamestown, 178 N.Y. 213, 217.) Where the law requires that for the exercise of a privilege or right a notice must be given or an act performed within a specified time, we have said that the requirement "is not absolute and unyielding." (Murphy v. Village of Fort Edward,213 N.Y. 397, 402; Matter of Keefe, 245 App. Div. 834; affd.,270 N.Y. 514.) Due diligence to comply with the statute as soon as possible should be sufficient under this statute and strict compliance should not be exacted, at least where the rights of no other person are thereby destroyed or impeded.

For these reasons, regardless of whether or not the statute receives the technical construction placed upon it by the courts below or the more liberal construction placed upon it in the opinion of Judge DESMOND, I concur that the order of the Appellate Division should be reversed.

FINCH and LEWIS, JJ., concur with DESMOND, J.; LEHMAN, Ch. J., concurs in separate opinion; LOUGHRAN, RIPPEY and CONWAY, JJ., dissent.

Orders reversed, etc.