Brown v. McGinnis

Chief Judge Desmond (concurring).

I concur with Judge Froessel’s careful and able opinion but out of caution I make this addition. I understand our reversal to mean that the Commissioner must promulgate forthwith (see Correction Law, § 112) the rules and regulations referred to in section 610 and that, subject to necessary security and disciplinary measures, he must extend to petitioner and his coreligionists all the rights guaranteed by section 610.

Judges Dye, Van Voorhis and Burke dissent and vote to affirm on the ground that the only application by the petitioner or the religious group which he represents was for religious services to be conducted by a congregation headed by a clergyman who was rejected by the Warden on account of a previous criminal record. That is the only application which has been before the Warden on which he was called to take action, and we cannot hold that what he did regarding it was arbitrary or capricious. The Warden is not required to supply clergymen of every conceivable denomination or sect under all circumstances. Unless and until he is apprised of some tangible proposal by this religious group, he is not called upon to formulate rules prescribing how this group shall be permitted to conduct their religious rites.

This is a proceeding in the nature of mandamus and no clear demand is presently before the Warden on which he may be compelled to act. Denial of mandamus rests in discretion, and a mandamus order can only be issued to compel the performance of prescribed acts to which the petitioner has a clear legal right (People ex rel. Empire City Trotting Club v. State Racing Comm., 190 N. Y. 31; Matter of Picone v. Commissioner of Licenses, 241 N. Y. 157; People ex rel. Hultman v. Gilchrist, 114 Misc. 651, affd. 196 App. Div. 964, affd. 232 N. Y. 598; Matter of Small v. Moss, 277 N. Y. 501, 507; People ex rel. Hammond v. Leonard, 74 N. Y. 443, 445; Matter of Gimprich v. Board of Educ., 306 N. Y. 401, 405-406).

The order denying relief in the nature of mandamus should be affirmed.

Judges Fuld and Foster concur with Judge Froessel ; Chief Judge Desmond concurs for reversal in a separate opinion in which Judges Fuld and Foster also concur; Judges Dye, Van Voorhis and Burke dissent and vote to affirm in a memorandum.

Order reversed and matter remitted to Special Term for further proceedings not inconsistent with the opinions herein.