
    The People of the State of New York, Appellant, v. Anthony Guilianti, Respondent.
    Argued December 5, 1961;
    decided January 11, 1962.
    
      
      Frank D. O’Connor, District Attorney (Benj. J. Jacobson of counsel), for appellant.
    Bespondent’s vehicle did not come within the statutory exception of having been designed and primarily used as a trailer to exempt it from registration. It is not sufficient for a vehicle to come within the exception if it is only primarily used for purposes other than that of a trailer; it is necessary also that it be designed for such other purposes. And the statute provides, in the conjunctive, that both elements must be present for the exception to obtain.
    
      Alexander A. Miuccio for respondent.
    I. The vehicle here involved is expressly exempt from the statutory requirements of registration within the meaning of section 156 of the Vehicle and Traffic Law. II. The People have failed, as a matter of law, to prove defendant’s guilt beyond a reasonable doubt; the motion made on the entire case should have been granted. III. The People have failed to establish a prima facie case as a matter of law. The motion made at the conclusion of the People’s case should have been granted.
   Foster, J.

On September 17,1960 defendant was served with a summons charging him with operating an unregistered vehicle on a public highway in Queens County (Vehicle and Traffic Law, former art. 3, § 11, subd. 1, now art. 14, § 401, subd. 1, par. a). At the trial in City Magistrates’ Court, City of New York, the arresting officer testified that defendant was operating a Ford truck which was drawing an unregistered ‘ ‘ trailer ’ ’ bearing-no ‘ ‘ distinctive number plate. ’ ’ On cross-examination, the arresting officer was asked this question: ‘ ‘ What is this unregistered vehicle designed and primarily used for? ”, to which he answered, “ I don’t own it, I don’t know what he uses it for.” The officer described the vehicle as a “ regular trailer ” which was “very long * * * approximately maybe 30 feet”. Counsel for defendant moved to dismiss on the ground that the prosecution had failed to prove prima facie that the unregistered vehicle was a “ trailer ” subject to the registration law. The motion was denied.

Defendant described the vehicle as a “ field office, a construction field office used for consulting engineers for the park department ”, and testified that the vehicle was being removed from a contracting job where it had remained stationary for one year, and that generally it was moved “ once ” or “ possibly twice a year.” The field office at no time was used as a living abode or habitation nor did it contain plumbing or sleeping accommodations. The measurements of the vehicle were given as approximately 6 feet high and 6 feet wide by 16. It contained removable wheels, which were taken off when it was stationed. Again a motion to dismiss was made and denied. Defendant was found guilty and was fined $25.

The judgment of conviction was reversed unanimously for errors both of law and fact and the complaint dismissed by the Court of Special Sessions, Appellate Part, City of New York, Second Department. The People appeal pursuant to a certificate granted by an Associate Judge of this court.

Section 156 of the Vehicle and Traffic Law defines “ trailer ” (subject to the registration law) as follows: “ Any vehicle not propelled by its own power drawn on the public highways by a motor vehicle * * * except * * * vehicles designed and primarily used for other purposes and only occasionally drawn by such a motor vehicle ” (emphasis supplied).

The sole issue presented is whether or not a question of fact existed as to the nature of the vehicle and as to defendant’s guilt. If such a question existed, the Court of Special Sessions had no power to dismiss the complaint (Cohen and Karger, Powers of the New York Court of Appeals, § 200, p. 752; People v. 25 Stations, 3 N Y 2d 488, 490-491; People v. Rudolph, 303 N. Y. 73, 79; People v. Bellows, 281 N. Y. 67; People v. Scheinman, 295 N. Y. 142).

We think that there was sufficient evidence in the record to present a question of fact. The statute excepts from its definítiou of trailers vehicles (1) designed and (2) primarily used for other purposes, and only occasionally drawn by motor vehicles. Thus it is not sufficient for a vehicle to come within the exception if it simply is used primarily for purposes other than that of a trailer; it also must be designed for such other purposes. Both elements must be present for the exception to apply.

The vehicle was a van, described by the complainant as a regular trailer, approximately 30 feet in length. Defendant testified that the dimensions of the field office were 6 feet high, 6 feet wide, and 16 feet in length. The trailer-like shape and appearance of the vehicle thus were established. Additionally, the vehicle contained wheels which were removable, and were taken off when the vehicle was stationed. Though used for a field ' office, it might be found that the vehicle was designed for use as a trailer, either for living or hauling purposes despite the testimony of the defendant. The police officer did not testify that he did not know the purpose for which the vehicle was designed. He merely said: “I don’t own it, I don’t know what he uses it for.”

The field office contained wheels, and was capable of being drawn on the highway. It undoubtedly was a 1 vehicle ’ ’ (Vehicle and Traffic Law, § 159). A vehicle of this type, capable of being used as a “ home or living abode or habitation of one or more persons, either temporarily or permanently ” is classified as a “trailer” (Vehicle and Traffic Law, § 119; emphasis supplied). The size and shape of the vehicle, and the descriptive words used by the police officer were sufficient .to present a question of fact as to whether the vehicle was capable of being lived in, at least by one person, temporarily. And certainly the fact that it contained removable wheels indicates that it was designed for use as a trailer, at least for hauling purposes. That the vehicle was used primarily as a field office, and was drawn only occasionally on the highway, is not sufficient to exempt it from registration. A trailer may be moved but once a year, yet it must be licensed. A question of fact existed as to the purposes for which the vehicle was designed.

Since the reversal below was upon the law and the facts, and the complaint was dismissed notwithstanding that a question of fact existed as to defendant’s guilt, the order of reversal should be reversed, the complaint reinstated, and a new trial ordered (Cohen and Karger, Powers of the New York Court of Appeals, p. 752; People v. 25 Stations, supra; People v. Bellows, supra; People v. Scheinman, supra; People v. Rudolph, supra).

Fuld, J. (dissenting).

In my opinion, the defendant’s vehicle comes within the exception contained in section 156 of the Vehicle and Traffic Law. And, if this is so, it follows that the defendant was not guilty of operating a vehicle which had to be registered and that the complaint was properly dismissed by the Appellate Part of Special Sessions.

The applicable statute in so many words excepts trailer-like vehicles from registration which are designed and primarily used ” for a purpose other than to be drawn ” on the public highways by a motor vehicle (Vehicle and Traffic Law, § 156). The proof concededly establishes that the vehicle here involved “ only occasionally” traveled the public highways and that it was not primarily used ” for such a purpose, but it is urged that ‘ ‘ it might be found that the vehicle was designed for use as a trailer, either for living or hauling purposes despite the testimony of the defendant ” (opinion, p. 436).

Regardless of what ‘ might be found ’ ’ at some future time, the simple fact is that the only evidence in the record before us supports the defendant’s position. Thus, it was his unequivocal and uncontradicted testimony that Ms trailer-like vehicle was ‘ ‘ designed and primarily used for * * * a field office, a construction field office used for consulting engineers for the park department.” Moreover, in.answer to further questions, the defendant stated that “ this field office ” is transported but “ Once, possibly twice a year ”, that the transportation occurs only when the office ” is being moved from one “ contracting job ” to another and that it had been stationed for one year at the site of the last job and was being shifted — at the time he received a summons — to the new job in Whitestone, Long Island. It also appears that the vehicle has no living facilities, such as plumbing or sleeping accommodations, and is never used as the home, living abode or habitation of anyone.

I find not a single word in the record which disputes or detracts from this testimony as to the vehicle’s design or primary use. The police officer who served the summons upon the defendant frankly acknowledged, in answer to the question as to what the vehicle was designed and used for, “ I don’t own it, I don’t know what he [the defendant] uses it for.” This is a far cry from the essential testimony that the vehicle was designed primarily for use on the highways.

The fact that it contained removable wheels certainly does not indicate that it came within the compass of the statute. The Legislature, it seems perfectly clear, was willing to exempt vehicles, even those resembling trailers, which were not intended for general use on public highways and which were not actually used on those highways except on rare occasions. (Cf. People v. Bay Ridge Operating Co., 259 App. Div. 260, 262.) The defendant’s vehicle was, according to the only evidence on the subject, “designed” for stationary use as a “field office ’ ’, and, being so designed, was so employed. That it was capable of being drawn on the highways does not subject it to registration as long as it was ‘ ‘ designed and primarily used for other purposes and only occasionally drawn by * # * a motor vehicle.” Any other interpretation would deprive the exception here involved of all meaning, since any vehicle drawn on the highways must necessarily be “ designed ” for such use.

The trial judge was warranted in refusing to dismiss the complaint at the close of the prosecution’s case, but there can be no question (as the Appellate Part held) that at the conclusion of the entire case, and based on all of the evidence presented, the People failed to establish that the defendant was operating a vehicle which had to be registered.

The order dismissing the complaint should be affirmed.

Chief Judge Desmond and Judges Dye, Froessel, Van Voorhis and Burke concur with Judge Foster; Judge Fuld dissents in a separate opinion.

Order reversed, the complaint reinstated and a new trial ordered. 
      
      . Section 156 defines a trailer, subject to registration, as “Any vehicle not propelled by its own power drawn on the public highways by a motor vehicle as defined in section one hundred twenty-five operated thereon, except * * * vehicles designed and primarily used for other purposes and only occasionally drawn by such a motor vehicle.”
     