In re Niles

48 How. Pr. 246 | New York Court of Common Pleas | 1875

Lead Opinion

Daly, Chief Justice.

We are satisfied, upon the evidence before us, that Niles was removed by the Supreme Court, from the office of attorney and counsellor, on the 3d of February, 1851. The evidence of it is, that after Niles’ conviction for the offense for which he was sentenced to the State prison, an order of the general term of the Supreme Court, together with a copy of his conviction, was served upon him, requiring him to show cause, at the next general term of the court, why he should not be removed; and that that motion was made and granted, appears by the affidavit of Henry Bertholf, who was then crier of the court, who swears that he was present in the court when N. B. Blunt, the district attorney, made the motion for the removal of Niles, and that it was granted. The fact further appears by the New York Herald of February 4th, 1851, which gives a detailed account of what occurred in the general term on the previous day (Feb. 3d), Chief Justice Edmonds and Justices Edwards and King presiding, upon the hearing and granting of the motion removing Niles. In the New York Daily Tribune of February 5th, 1851, it is stated, that on the previous Monday (Feb. 3d), Niles was removed from the roll of attorneys and counsellors of the Supreme Court; that the motion was made by the district attorney, and that nobody appeared to oppose.

The papers upon which the motion was ■ made are on file ; but no order granting the motion can be found. After this long lapse of time, twenty-four years, the draft order, if one were made, may have been lost, destroyed or abstracted ,• of the entry of it I shall hereafter speak ; but of the fact that the motion was made and granted, there can be no reasonable doubt. It is further corroborated by the fact that like motions were made in this and in the Superior Court and granted, as appears by the records of both courts.

In June, 1857, a motion was made in the Supreme Court, that the order removing him be set aside as irregular and void, upon the ground that no charge had been served upon him, and that being in the State prison when the motion was made, he was unable to be heard in his defense. It was founded upon an affidavit of Niles, in which he avers that he was informed and believed that an order had been made and entered at a general term of the court on the 3d of February, 1851, depriving him of his right to practice as an attorney and counsellor. The motion was denied, the court holding that he had been duly served with a copy of the charges against him, and with the order to show cause; that he had had an opportunity of being heard in his defense; and that his removal from office was in all respects regular.

On the 30th of December, 1859, another application was made; the matter was referred to a referee, and on the 23d February, 1863, a formal order was entered, declaring that the court declined to take any further action in the matter.

In February, 1870, Niles assumed to act as an attorney, and brought a suit in the Supreme Court. A motion was made to set aside the summons upon the ground that he was not an attorney, which motion Judge Ingbaham denied, upon the ground that the papers were not complete, because they did not contain the order of the general term removing Niles. Judge Isgbaham, as appears from his opinion, thought the motion was not made by the defendant in that action in good faith, as he had no copy of that order in his papers. An appeal was taken to the general term, Judges Barnard and Cardozo presiding, and Judge Ingraham’s decision was affirmed.

Tins decision neither declared that Biles had not been removed, nor was it a formal readmission of him as an attorney. It merely affirmed the decision denying the motion to set aside the summons for irregularity, as the papers did not contain the requisite proof of Biles’ removal—i. e., a copy of the order removing him. That order, or an authenticated copy of it, was the official and best evidence of the fact; and as that was not produced, nor its non-production accounted for, the conclusion appears to have been that the moving papers were defective for the want of proper evidence of Biles’ removal. That was the ground assigned by Judge Ingraham in his opinion ; and as his decision was affirmed by Judges Barnard and Cardozo, without delivering any written opinion, it may be assumed that that was the ground also of affirmance.

There is no such question before us. The order would necessarily have been entered in the minutes of the court, but we have the certificate of the clerk of the court that he has caused a search to be made for the rough, as well as for the regularity engrossed, minutes of that year, 1851, and that neither can be found; the explanation of which probably is that three years afterwards, on the 19th of January, 1854, the building in which the Supreme Court was then held was entirely destroyed by fire, a fire by which, as appears by the proof before us, a great many of the records of the court were destroyed. This sufficiently accounts for the non-production, of the order of the court removing Biles. If the books in which the minutes of the general term of February 3d, 1851, were kept, were in existence, the order, I doubt not, would be found duly entered ; but the probability is, as I have suggested, that they were destroyed in the fire. It was, as I suppose, the circumstance of the discovery of the destruction of the record evidence which emboldened Biles, in 1870, sixteen years after his release from the State prison, to commence practicing again as an attorney and counsellor in all the courts, upon the assumption that he had never been removed.

The order notifying him to show cause was served upon him on the 8th day of January, 1851. On the 13th of that month he was sentenced to the State prison, and on the 3d of February following, the motion for his removal was made and granted in the general term. He had five days at least before his sentence, to procure counsel to appear for him upon the motion if he wished to be represented upon it, which it is evident he did not, for the obvious reason that he had nothing to say in opposition to it. He had been tried and convicted of most flagrant acts in his professional character as an attorney, the punishment for which was imposed by his subsequent sentence to the State prison for two years and six months. That he was in the State prison and all his civil rights suspended when the motion was heard and granted, is a point to which we attach no weight. The suspension of his civil rights did not give him any immunity from proceedings against him, nor suspend the rights of others (Davis V. Duffie, 1 Abbott’s & Court of Appeals Decisions, 486; affi’g. 8 Bosw. 619).

A professional opinion of Judge Bosworth, that Niles is entitled to practice as an attorney and counsellor of the Supreme Court, has been submitted to us. The judge was of the opinion that if an order had been made by the general term in February, 1851, removing Niles, it would have been valid, as the papers served upon him presented facts which authorized his removal, and that the court were competent to make such an order; but he thought, upon the facts stated to him, that the inference must be that no such order was made. He had not before him all the evidence that we have. In the inquiry before us, the non-production of the order is accounted for, and we have the sworn statement of the crier of the court that he was present when the motion was made, and heard the decision pronounced—a statement so fully sustained by other evidence as to leave no room for doubt.

By the act of 1862 (L. 1862, c. 484, p. 970) it is a misdemeanor punishable by fine and imprisonment, for a judge knowingly to allow any person to practice in the courts of this city who has not been regularly admitted to practice. It may be that Niles is not within the letter of the statute, having been regularly admitted; but, if it be an offense to suffer a person to practice who has not been admitted, how much graver, within the meaning of this statute, would be the offense, in a moral point of view, if he were to allow a man to practice who was stripped of his office upon his being convicted and sent to the State prison for extorting money from persons, by threatening as attorney to bring actions or prosecutions against them for alleged acts affecting their morals, and who, although entirely innocent, complied with his demands rather than endure the exposure and scandal incident to the public vindication of them.

Our conclusion is that Niles was deprived of his office of attorney and counsellor of the Supreme Court by a proceeding in all respects regular and valid, that he has not been readmitted, and that he is not entitled to practice in this or in any other court in this State.

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Concurrence Opinion

Robinson, J.

While concurring entirely in the views expressed by the Chief Justice, mine are still more radical. Niles, being an attorney of the Supreme Court, was convicted of obtaining goods under false pretenses, and sentenced to State prison for an infamous crime, and there worked out his sentence. His conviction has never been reversed. Under these circumstances I am of the opinion—without consideration of any action of the Supreme Court to remove him, which, nevertheless, seems to have been effectual—that he is not qualified to practice as an attorney and counsellor in this State; and for these reasons:

Attorneys and counsellors are by the statutes enumerated among the class of public officers known as judicial (1 R. S. 98; Merritt v. Lambert, 10 Paige, 356), and subject to removal or suspension. Their tenure is for life (1 R. S. 109, § 23; Wallis v. Loubat, 2 Den. 607). They may be so removed or suspended by the courts in which they shall be appointed, for deceit, malpractice, or misdemeanor, on charges preferred and opportunity given for defense (1 R. S. 109, §§ 23, 24). But every office becomes vacant on the removal of the incumbent, or his conviction of an infamous crime (1 R S. 122, § 34, sub. 3, 5).

While obtaining goods under false pretenses has been held not to be a felony (Fassett v. Smith, 23 N. Y. 252), an infamous crime is one punishable with death, or by imprisonment in a State’s prison (2 R. S. 702, § 31).

A sentence of imprisonment for any term less than life, suspends all the civil rights of the person so sentenced and forfeits all public offices [and all private trusts, authority or power during the term of such imprisonment (2 R. S, 701, § 19)]. This latter limitation during the term of such imprisonment can have no reference to an office forfeited, but applies to private trusts, &c. To hold that a judge of this court, elected for fourteen years, and sentenced to prison for two or three years, might, on the expiration of his sentence, again resume the judicial functions of his office would be preposterous. The sentence forfeited Hiles’ office, and a proper construction of the provision would, at most, restore his capacity after the term of his sentence had expired to be again elected or appointed.

By such conviction his office as attorney and counsel became vacant (1 R. S. 122), and his sentence forfeited it (2 R. S. 701). A pardon by the governor only would have restored his competency to testify (2 R. S. 701, § 23), or his capacity thereafter to be elected or appointed to some office or trust, but could by no retroaction restore him to any office he had either vacated or forfeited.

The order of the Superior Court, Jan. 18th, 1851, was granted on mere production of the conviction and sentence.

Having thus ceased to hold such office of attorney and counsel, he cannot be allowed to practice without readmission by the Supreme Court, which is not pretended.

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Concurrence Opinion

Chief Justice Daly.

Judge Daly and myself also record our concurrence in the views taken in the opinion of Judge Robinsoh. We give it as the united opinion of the court, on all the grounds stated, that he was properly removed—that, in other words, he ceased to be an attorney under operation of the statute, upon his conviction and his going to State prison. But we are satisfied, even if he had not been removed, that he could not practice. The statute declares that any one guilty of an infamous crime, shall forfeit his office, if he is sent to the State prison. In the cases in which Hr. Hiles has appeared here—

Mr. G. 17. Niles (interrupting).

Will your honor take them on submission ?

Chief Justice Daly.

Tes, under the circumstances, we will take them on submission.

Mr. Niles here handed up the papers relating to the cases in which he appeared, and the proceedings terminated.^*

* After the hearing in this matter, on J annary 13th, 1875, the court received an affidavit of A. Oakey HaE, Esq., in which Mr. Hall deposed, that he was present at the General Term of the Supreme Court, on the 3d of February, 1851, on the return day of the order requiring Hiles to show cause why he should not be removed, when the subject was called up, and that he heard the court pronounce the judgment disbarring Hiles, that he (Hall) was then the assistant of the district attorney, H. B. Blunt; that he assisted Mr. Blunt in drawing the order disbarring Hiles; that he had the most distinct recollection of seeing the order handed by Mr. Blunt to the judges, and of seeing it immediately afterwards in the hands of the clerk of the term, for docketing; that this being the first proceeding of the kind he had ever seen, or been connected with, he took the most particular notice of all the above details.

Hotice was served on Mr. Hiles on January 14, of the receipt of this affidavit; of the facts it contained; that he was at liberty to inspect it in the clerk’s office, and that if he had anything to say respecting it, the court would hear him at any time before the adjournment of the court, on the 15th of January, and after that time the affidavit would be filed as one of the papers on which the final order would be made.

Mr. Hiles not having appeared throughout January 15th, nor any one on his behalf, an order was made that the affidavit of Mr. Hall should be placed on file as one of the papers on which the final order was to be entered. On January 18th, a final order was entered in the following form:

[Title of the Proceeding.]

George W. Hiles having appeared in this court, and having assumed to act as an attorney and counsel in several cases before the court, the court directed him to state by what authority he acted as an attorney and counsellor, and if he had been readmitted as such. On reading the certificate of his conviction, on the trial of indictment for obtaining money by false pretenses, in the Court of General Sessions of the Peace, held in the city of Hew York, on the 30th day of December, 1850; and the service of an order of the Supreme Court of the State of Hew York, of the First Judicial District, upon the said Hiles, to show cause why he should not be removed from practicing as an attorney, solicitor and counseEor in any of the courts of this State, on the 7th day of January, 1851; also the affidavit of H. Bertholf, crier of the Superior Court, showing that he was removed by the said court; and the order of the Supreme Court, dated December 30th, 1869, referring it to Hon. Wm. Mitchell, to inquire as to the moral character of said Hiles, and to report whether in his opinion the rule removing him should be vacated; and the communication to the said court, by the said Wm. Mitchell, dated Sept. 28th, 1860, concerning the same; and on reading the affidavits, orders and motion papers in the action wherein George V. House was plaintiff, against John W. Porter, defendant, and the orders of the court made thereon; and the orders of the general term of the Supreme Court, dated Sept. 16th, 185V, denying the motion to restore his name to the roll of attorneys, &c.; and the affidavits and orders made and granted by the court in the action between Thos. Butler, plaintiff, against Wm. Lee, defendant, with the notes of testimony taken before Thos. W. Clarke, referee appointed by this court March 20th, 18V4, and the report of the said referee, not yet filed nor acted upon; and the affidavit of B. W. Buchanan, the certificate of the county clerk, dated January 11th, 18V6; and on recording and filing the affidavit of said Hiles, dated January 13th, 18V6, and this court having heard the said Hiles, in reference to his right to appear as attorney and counsellor in this court; and on reading and filing the affidavit of A. Oakey Hall, Esq., dated the 16th January, 18V5 :

It is ordered and adjudged, that said George W. Hiles, on the 3d day of February, 1851, was removed by the general term of the Supreme Court of the First Judicial District, from his office as attorney and counsellor of this State, and that since the conviction and sentence of the said Hiles, his office as attorney and counsellor became vacant, and was forfeited by him; that he has not been readmitted ; and that he has no right to appear as an attorney and counsellor at law in this court, or in any court of this State.