In re the Attorney-General

Valente, J. (dissenting).

I dissent and would reverse the order and permit the Attorney-General’s investigation to proceed.

The majority opinion affirms the conclusion of Special Term that in the promotion and sale of the Darvas book the American Research Council, Inc. (Council) and its president were not engaged in giving any “ investment advice ” and for that reason the Attorney-General may not investigate their activities under section 352 of the General Business Law. Consideration of this appeal must commence with the factually well-supported assumption that the investigation embarked upon by' the Attorney-General is not designed to suppress the publication and distribution of the Darvas book, but to determine whether there is a basis for injunctive relief against fraudulent practices in connection with the publishing, promotion and sale of the book.

Initially, the record shows that the Council was registered with the Securities and Exchange Commission as an “ investment advisor ” and has been so registered since 1956 pursuant to the Federal Investors Advisory Act of 1940 (U. S. Code, tit. 15, § 80b). The order which the Attorney-General obtained pursuant to section 354 of the General Business Law was based on affidavits by the Attorney-General averring, among other things, that the Council was in the business of investment advice, was registered as an investment adviser under the Federal statute, had conducted an extensive advertising and mail-order campaign in connection with the book and had made misleading references on the book jacket. Since, in the words of Carnozo, J., in Matter of Ottinger v. Civil Serv. Comm. (240 N. Y. 435, 439) the Attorney-General “ almost upon mere request [he] may have an examination before trial of parties or of witnesses ’ ’ in an investigation under the Martin Act, there was certainly a sufficient basis averred here to secure an order for the examination of the Council and its principal officer with regard to their activities in connection with the Darvas book. It was not necessary for the Attorney-General, at this stage of the proceedings, to establish his right to any particular relief in any subsequent action.

Both the majority opinion and that of Special Term make reference to the chapter 961 of the Laws of 1960 which added to section 352 of the General Business Law the words “ investment advice ”, added a new section 359-eee defining an “ investment advisor ” and provided for the registration of investment advis*78ors. However, there can be no doubt that before the enactment of chapter 961 of the Laws of 1960, the Attorney-General had the power to proceed against persons responsible for investment advice that fell within the fraudulent practice proscription of the Martin Act. The provisions of the 1960 amendments unquestionably were introduced to require the registration of ‘1 investment advisors”; and having required the registration of the persons defined in section 359-eee, it was deemed suitable to refer specifically to “ investment advice ” and “investment advisors ” in other sections of article 23-A of the General Business Law. Obviously, the requirement of registration was designed to facilitate regulation by furnishing the identity of any person in the field. It perverts the purpose of the enactment to hold that a person engaged in practices that might otherwise be deemed to fall within the Martin Act concept of a ‘ ‘ fraudulent practice ’ ’, may be permitted to roam the securities market or field of investment advice, freed from any possible restraint by the Attorney-General because such person is either nonregistered or not subject to registration requirements. Hence, the provisions of section 352 cannot reasonably be deemed to be limited by the definition of “investment advisor” contained in, section 359-eee.

The Martin Act created a comprehensive scheme for the protection of the public from misleading representations in the field of securities (see People v. Federated Radio Corp., 244 N. Y. 33). Deceitful practices may assume a myriad of forms, but so long as they may have a tendency to deceive or mislead the purchasing public, the Attorney-General should not be hampered in an attempt to uncover a “ fraudulent practice ”. On the record before us, there was a sufficient basis for the Attorney-General to proceed in his investigation; and that inquiry should not have been aborted by vacating the order obtained pursuant to section 354 of the General Business Law.

Breitel, J. P., McNally, Steuer and Bastow, JJ., concur in Per Curiam opinion; Valexte, J., dissents and votes to reverse in opinion.

Order entered on January 12, 1961, granting petitioners-respondents’ motion to vacate and set aside thé ex parte order of the Supreme Court, New York County, dated December 7, 1960, directing them to appear for examination and to produce certain books and records, affirmed, with $20 costs and disbursements to respondents.