In my opinion, the lower court erred in dismissing the indictment charging defendants with one crime of conspiracy and sixteen crimes of bribery in violation of section 380 of the Penal Law. It appears from the Grand Jury minutes that defendant Cilento was secretary-treasurer of the Distillery, Rectifying, Wine and Allied Workers International Union of America from its inception in 1940 until his resignation in 1954. The constitution of the union defined the powers and duties of his office. It was provided, among other things, that “ [b]y virtue of his office ” he was “ a member of the Board of Trustees with the Social Security Department.”
This department was created by the union in 1947 pursuant to the provisions of section 302 of the Labor Management Relations Act, 1947 (U. S. Code, tit. 29, § 186), the so-called TaftHartley Act. The constitution of the union further provided for the establishment of a social security fund to administer programs of accident and health insurance and provisions for death benefits, covering employees who are members of the union. Pursuant to trust agreements between the International Union and the employers, each of the collective bargaining agreements entered into between local unions and employer?1 provided for a percentage payment to the fund. The fund was to be administered by a board of six trustees, three appointed by the union and three by the employers. Actually, only one trustee of the three union trustees was so appointed. The constitution of the International Union provided that the general president thereof should become chairman of the board of trustees and was authorized to appoint one other trustee and, as heretofore stated, defendant Cilento, by virtue of his office as general secretary-treasurer, became the third labor trustee.
It appears, from testimony before the Grand Jury, that both before and for many years after the establishment of this social security fund, Cilento, through a series of agreements and nefarious schemes with third persons, including the broker, who obtained the insurance for a named company, received large sums of money. It would serve no useful purpose to detail here the evidence given before the Grand Jury. It is sufficient to summarize the activities of defendants by stating that before the Grand Jury the insurance broker testified that, during the last three years of the existence of this alleged bribery con*212spiracy, some $300,000 was paid to defendants Cilento and Carfano (Pisano) “ so that * * * (the insurance broker) could continue to secure and retain the insurance on the Liquor Union.”
The pertinent portion of subdivision 2 of section 380 of the Penal Law provides that “ [a]ny duly appointed representative of a labor organization who solicits or accepts or agrees to accept from any person any money, property or other thing of value upon any agreement or understanding, express or implied, that he shall be influenced in respect to any of his acts, decisions, or other duties as such representative * * * is guilty of a misdemeanor.” Each of the bribery counts in the indictment, that has been dismissed, charges that ‘ ‘ being a duly appointed representative of a labor organization, to wit, a trustee of the Social Security Fund ” of the International Union and secretary-treasurer of the International Union the defendant, Cilento, solicited, accepted and agreed to accept from the insurance broker a specified sum of money upon an agreement that Cilento should be influenced in respect to ‘ ‘ his acts, decisions, and other duties as such representative.”
The lower court, in dismissing the indictment, based its decision upon the narrow point that, because the insurance fund was administered by a special board of trustees, Cilento, who occupied the dual positions of officer of the union and trustee of the fund, was not acting in his capacity of representative of the union but in his position as trustee of the fund. The conclusion was reached that, since such a trustee is not a ‘ ‘ duly appointed representative of a labor organization ”, the alleged bribetaking of Cilento was not prohibited by the statute.
I am unable to agree with such a narrow and unrealistic interpretation of section 380. Cilento held his position as trustee not by appointment but ex officio, by virtue of being the secretary-treasurer of the International Union. He did not function as a normal independent trustee but served as such solely because he was a representative of the union. In the event he accepted bribes, he did so as a trustee who was at the same time representing his union. Moreover, and quite aside from his duties as trustee, Cilento had an independent duty as officer of the union to report to the members any evidence of bribery or wrongdoing on the part of any officer. Upon the evidence here presented, a jury might find that the statute was violated by the bribes paid to Cilento so that he, as an officer of the union, would be influenced not to report to the members that excessive brokerage commissions were being paid by the insur*213anee company to provide a fund for the payment of bribes — an excessive commission that cost the union members approximately $250,000 annually.
The People should have a full opportunity to present all of the facts upon a trial. A jury might well find that the bribes paid to Cilento, with the aid and assistance of the other two defendants, Scalise and Pisano, were taken by him as a representative of a labor organization to influence his duties as such.
The order dismissing the indictment should be reversed and the indictment reinstated.
Cox and Frank, JJ., concur with Rabin, J.; Bastow, J., dissents and votes to reverse in opinion in which Peck, P. J., concurs.
Order affirmed.