139 Misc. 675 | N.Y. Sup. Ct. | 1931
Under the authority vested in him by article 23-A of the General Business Law (sections 352 et seq. as amd.), the Attorney-General has undertaken an inquiry into the acts and practices of the Bank of the United States and persons connected therewith to ascertain whether, in the administration of the affairs of the Bank of the United States and its subsidiary or associated corporations, fraudulent practices were indulged in. In the course of the proceedings the Attorney-General appointed and designated Max D. Steuer his Deputy Attorney-General in charge of such investigation, and later appointed as assistant in the capacity of assistant attorneys Israel H. Perskin and Harry A. Gordon. At the request of the district attorney of New York county, Mr. Steuer later accepted an appointment as assistant district attorney to conduct proceedings before the grand jury in New York county and to present to such grand jury any evidence of crime which might be available. In the course of the proceedings before the Attorney-
As to the principal part of the application, which is confined to quashing the subpoenas, the petitioners base the application chiefly upon the fact that Max D. Steuer, who was appointed Deputy Attorney-General, has had multifold relationships with litigations involving or relating to the affairs of the Bank of the United States, and that he had made public announcements which the petitioners contend indicated a prejudice against the Bank of the United States and persons associated with it; that in the dual capacity of a Deputy Attorney-General and assistant district attorney he is acting in two incompatible offices and principally that the contemplated investigation by the Attorney-General is announced to be a public investigation. Supporting their contention that the multifold relationships of Mr. Steuer disqualify him from acting in a public capacity in the conduct of this investigation, the petitioners have recited five actions, some of which are still pending and in which Mr. Steuer acted either in the capacity of attorney of record
Another point strongly urged by the petitioners is that Messrs. Singer, Perskin and Gordon are associated as counsel to a group of the depositors and stockholders of the said bank and its subsidiary compames who have organized a Bank of the United States Depositors’ and Stockholders’ Association with the expressed purpose of recovering for the depositors and the stockholders alí that might be available to them upon a strict and proper liquidation of the affairs of the Bank of the United States, and that such association
It is strongly urged by the petitioners that this case affords reasonable cause for resisting the investigation in that, as petitioners contend, the public nature of the hearing deprives them of constitutional rights and privileges, and that under that authority they may insist upon secrecy in the course of the investigation. An examination of the Dunham case seems to indicate that one of the controlling features of that case was that an attempt was made at a public hearing to deprive a witness of the right of counsel, and inasmuch as the investigation might be preliminary to a criminal proceeding the attempt to deprive him of his private rights and liberty rendered that conduct improper and in violation of the witness’ constitutional rights. The question whether or not constitutional rights were involved in the nature of the investigation as a public investigation, distinguished from a private investigation, was not before the court. A reference to the briefs used in the case, as the attention of this court has been directed thereto by the respondent, indicates that the petitioners in the Dunham case conceded the authority of the Attorney-General to conduct public hearings. Therefore, the Dunham case has no application to the contention of these petitioners that a public hearing is in violation of their constitutional rights. Reference to section 352 of the General Business Law (as amd. by Laws of 1927, chap. 365), and particularly to the closing sentence thereof, dispels all- argument that the Attorney-General in the conduct of the investigation
Petitioners also claim that Mr. Steuer, acting in two constitutionally created offices, is acting in two offices whose duties are incompatible. There are authorities cited by petitioners which hold in numerous instances that two incompatible offices may not be held by the same person where the duties of the offices are in conflict. But an examination of those authorities indicates that they were judicial or quasi-judicial offices, whereas the office of Attorney-General has been deemed to be a ministerial office. This distinction alone is sufficient to avoid the application of the authorities cited by the petitioners, but a further impediment to an interference with the selection of deputies and assistants by the Attorney-General as a ministerial office is the express authority of article 23-A in section 359-a of the General Business Law (added by Laws of 1921, chap. 649). However, without determining the effect of the dual office of Deputy Attorney-General and assistant district attorney being held by one person upon the validity of any conclusion that may be reached in an investigation conducted under such circumstances, the matter of adjudicating the qualifications of Mr. Steuer in such dual capacity is not before this court. The question to be determined here is whether the Attorney-General, under the authority of article 23-A of the General Business Law, is authorized to conduct an investigation which is in progress and whether the subpoenas have been regularly and properly issued in legal form. If the petitioners contend that the examining agency, Mr. Steuer, by reason of his dual position, creates reasonable cause
All of the grounds which have been asserted by the petitioners to support this application have, we feel, been commented upon, and we are now confronted with the chief and controlling feature of this application, which makes it necessary that the application be entirely dismissed. The right to injunctive relief, which would be the effect of an order quashing subpoenas in this investigation, can only be had in pursuance of statute, and provision therefor is made in section 878 of the Civil Practice Act, which provides that an injunction may be had only in a pending action where the action itself is for an injunction, or where, pending the action, something is being done or threatened to be done which will make the judgment in the action ineffectual. A different situation might be presented here if the petitioners had instituted an action for an injunction and applied for preliminary relief in the action, but no action has been instituted and nothing has been presented to this court excepting the petition of the petitioners, which is wholly insufficient to confer upon this court jurisdiction to issue an injunction or to grant the relief prayed for — that is, quashing the subpoenas. This is not intended as an intimation that an action for an injunction will lie, but is expressed here as the controlling feature in this application, compelling the conclusion that the court, being without authority, is compelled to dismiss the- petition and to deny the application.
The motion of the petitioners is denied, and the stay contained in the order to show cause vacated.