229 A.D. 654 | N.Y. App. Div. | 1930
(1) The incidents in the first charge may be placed in three groups: (a) The first group relates to incidents upon" which charges were formulated in disregard of the stenographic minutes and records which conclusively establish the erroneous bases upon which the charges were predicated. Further inquiry into these charges is not needful, (b) The second group of incidents discloses comments and observations made by respondent. The truth with reference to them need not be gone into because if true, and not justifiable, they are not of a sufficiently gross character to sustain the removal of the respondent, (c) The third group involves a claim in two instances of improper commitment of a party litigant for observation as to his or her sanity, made by respondent before the disposition of offenses of which the respondent had jurisdiction. Assuming, without deciding, that the court was guilty of an erroneous exercise of discretion or judgment, such a conclusion would not warrant removal of respondent, in the absence of corruption or willful intent to disregard the law. (Matter of Tighe, 97 App. Div. 28.) The allegations of fact in the petition are insufficient to charge the respondent with willful intent to disregard the law.
It follows that as to the first charge, an inquiry into the facts would be a futility.
(3) The third charge concerns whether or not the respondent is a resident of the borough of Brooklyn. This is determined so largely by the intention of the respondent, which has been asserted in support of residence in Brooklyn and is without dispute supported by many years of continuous exercise of the right to vote in Brooklyn, that it does not warrant a further inquiry in this proceeding, which conclusion we arrive at without prejudice.
We, therefore, conclude that these proceedings should be dismissed, with the observation that the record discloses conduct constituting a yielding to predilections in a manner that properly subjects the respondent to disapproval, even though that conduct be not of a character that would warrant, under the authorities, his removal from office. The existence or non-existence of such predilections should, however, be considered by the appointing power in the first instance by way of avoiding the appointment to the office of magistrate of individuals who are likely to indulge in comments, observations and conduct of an objectionable character which militates against the seemly administration of justice, even though that conduct be not of so gross a character as to warrant, under the precedents and present statutes, the removal of an incumbent for indulging in it.
The motion should be denied.
Young, Carswell and Scudder, JJ., concur; Lazansky, P. J., and Hagarty, J., dissent, with the following memorandum: A city magistrate may be removed for cause. (Const. of N. Y. art. 6, § 17; Inferior Crim. Cts. Act of City of N. Y. [Laws of 1910, chap. 659], § 103, as amd. by Laws of 1925, chap. 618.) Cause, in so far as official acts are concerned, includes corruption, general neglect of duty, delinquency affecting general character and fitness for the office, acts in violation of law inspired by some interest, oppressive and arbitrary conduct, and reckless disregard for the rights of litigants. (Matter of Peterson, 39 N. Y. St. Repr. 923; Matter of Baker, 94 App. Div. 278; Matter of Bolte, 97 id. 551; Matter of Droege, 129 id. 866; Matter of Barlow, 141 id. 640.) The
Motion to remove a city magistrate denied.