150 N.Y.S. 30 | N.Y. App. Div. | 1914
Lead Opinion
The order appealed from denied the motion of the defendant to change the place of trial from the county of Albany to a county to be named by the court. While the record is voluminous, the single question involved upon this appeal is whether there is reason to believe that an impartial trial cannot be had in the county of Albany. When such a conclusion is reached the statute makes it the duty of the court to change the place of trial. (Code Civ. Proc. § 987.) The questions to be determined by the jury relate mainly to the truthfulness or falsity of certain statements made by the defendant regarding the plaintiff, the making of which the defendant will seek to justify. The statements also reflect upon certain departments of the State government, and upon both political organizations in the county. The issues thus involved are largely personal and political and have been the subject of much comment by the parties to the action as well as by the adherents of each. The plaintiff has been a member of the Republican State Committee for the district embracing the county of Albany, the place of his residence, for about twenty years, and has long been generally recognized as very influential in the councils of his party, and in fact as the leader and largely in control of the Republican organization of the county. During such time he has also been in control of the policy of a newspaper of large circulation and influence, in the columns of which, both before and after the commencement of this action, the defendant and his views have been vigorously assailed. While the personal and political activities of the plaintiff have doubtless engendered enmities to a greater or lesser extent, they have also resulted in creating obligations to the plaintiff, strong friendships and a large personal and political following. The defendant, although for periods temporarily sojourning in the county of Albany, has long resided in the county of Nassau at the extreme southerly end of the State, and were the place of trial located in that county and the motion one to change the place of trial from the county of Nassau the statements above made as to the relations of the defendant to his neighbors and other residents of his county would doubtless, to more or less of an extent, be applicable to such motion. Under the statute
The determination of this motion is in no wise affected by the allegations in the defendant’s affidavit of possible irregularities or acts of favoritism on the part of any public officer of Albany county. Indeed we think the charges in that regard utterly fail, and the action of this court is based wholly upon the grounds hereinbefore stated. Justice, as far as possible, must be administered without even the appearance of partiality.
The place of trial is, therefore, changed to the county of Onondaga.
All concurred, except Howard, J., dissenting in opinion.
Dissenting Opinion
I regret that I cannot concur with my colleagues in their conclusion that the venue in this case should be changed. William Barnes has sued Theodore Roosevelt for libel. The defendant alleges that he will not be able to obtain an impartial juiy or get a fair trial in Albany county; and he is asking the court to order the trial into some other county. The Oode says that “ where there is reason to believe that an impartial trial cannot be had ” in the county where the venue is laid, the court may change the place of trial. (Oode Oiv. Proc. § 987.) Unless there is reason for such belief in this case the place of trial cannot be changed for the plaintiff brought his suit in the proper county — the county where the Code commanded him to bring
‘c Facts, and not the mere impressions and conclusions of the parties or their witnesses should be considered and should control.” (People v. Long Island Railroad Company, 16 How. Pr. 106.)
The reasons, or it would be better to say the matters which the defendant puts forth as reasons, why the trial should be removed from Albany county may be divided into four parts. First, by insinuation, he accuses the county clerk and other public officials, burdened with the duty of preparing the jury list and drawing the jurors in Albany county, of the purpose of violating their oaths of office and violating the law by tampering with the jury system of the county to the detriment and prejudice of the defendant. Second, he presents a report of the Bayne investigating committee purporting to show that the jury lists are actually made up in a partisan and political way and are not composed of the names of fair and impartial jurors as they should be. Third, the plaintiff is alleged to' be the owner of a newspaper widely circulating in Albany county which has published and is publishing matter antagonistic and hostile to the defendant. Fourth, the plaintiff is alleged to be the leader of the Republican organization of Albany county, and, therefore, and for that reason exercises now, and will exercise at the trial, great influence over the jurors brought into court, and will obtain in this way an unfair advantage over the defendant.
Singling out the county clerk as the one official most likely to lend himself to “jury fixing” the defendant presents the following novel argument in support of his contention. He alleges that while the county clerk was State senator he had made up his mind to vote for the so-called “ Agnew-Hart Racing Bill,” and informed Senator Agnew of his purpose to do so; but subsequently, at the request of the plaintiff, he changed his mind and voted against the bill. Because of this circumstance the court is asked to conclude that the county clerk will now violate his oath and violate the law by tampering with the jury boxes in his custody. In other words, because an official on some previous occasion had performed a perfectly
A report of the Bayne investigating committee was presented to the court for the purpose of showing that the jury lists were, at that time, actually made up of the names of partisan, political and unfair men. The Bayne investigation was itself partisan and political. Courts can no more be deceived by the operations of committees of this character than can the public. The plain purpose of that investigation was to wreck the political fortunes of the plaintiff in this suit. Whether or not such purpose was laudable is not for us here to say; but a part of the evidence presented for our consideration now is the report of that committee. We are to weigh this evidence as
In calling the court’s attention to the Albany Evening Journal and the articles relating to the defendant which have appeared in that paper, the defendant has presented a situation not essentially dissimilar from that which obtains in every county of the State. The names, pictures and caricatures of each of the distinguished litigants in this suit are to be found almost continuously in all the newspapers of the State. Their policies and ideas and sayings are supported and are denounced in newspapers circulating in every corner of the State. It is idle to argue that any one county predominates over other counties in the newspaper discussion of such celebrated characters. That the plaintiff owns the Albany Evening Journal signifies nothing. His paper has not, except on one occasion, discussed the merits of this controversy, and as to the general discussion of the policies and acts of Colonel Roosevelt, many papers have surpassed the Journal in bitterness of denunciation. In this age of civilization it is impossible to send lawsuits where newspapers will not reach.
Therefore, this matter reduces itself down to the contention that the plaintiff is the Republican leader of Albany county, and by reason of his great influence in that capacity, will obtain an undue advantage in a trial in his own bailiwick. But he is also alleged to be the Republican leader in the State; and apparently he is no more the Republican leader in Albany county than in the State; perhaps not so much so, for, in order to have given his attention to the leadership of the State, he must necessarily have turned over to his lieutenants, to a great extent, the details of leadership in Albany county. Therefore, if his case cannot be tried in any place where he is a Republican leader, it cannot be tried anywhere in the State of New York. Both these litigants have grown into proportions far beyond the
Cases have been cited to us where the venue has been ordered changed. But every cáse must stand upon its own merits. What has been done in other cases matters little here. Unless we have reason to believe that a fair trial cannot be had in this case in Albany county we cannot interfere. There is no such reason; there is only suspicion. But a citizen cannot be deprived of his rights on suspicion. If the determination in other cases is to influence us, recent instances where life and liberty were in the balance may be cited to show that the courts will not lightly change the place of trial. (People v. Hyde, 149 App. Div. 131; People v. Becker, unreported.) In the Becker case the defendant moved before the trial judge for a change of the place of trial; but the motion was denied by the distinguished jurist who has since that time been elevated to the bench of the Court of Appeals. In that case the atmosphere was said to be charged and surcharged with opposition to the
If this motion had come to us from a private citizen, as the motion did in Noonan v. Luther, there might not have been any hesitation in refusing to change the place of trial. However, in its anxiety to do exact justice to the distinguished defendant in this suit and avoid even a “ suspicion ” that he is being denied a fair trial, a majority of this court has ordered the venue changed. But all men stand alike before the law; the great and the obscure, the rich and the impecunious, the statesman and the layman. The court should not tremble before the great; neither should the fear of criticism cause justice to falter. Unless we would change this venue on the
The learned Special Term justice exercised his discretion wisely and his order should be affirmed.
Order reversed, with ten dollars costs and disbursements, and place of trial changed to Onondaga county.