127 N.Y.S. 26 | N.Y. App. Div. | 1911
This proceeding was instituted in 1903, to acquire, by condemnation, “ a perpetual underground right, easement and right of way ” under Joralemon and other streets in the borough of Brooklyn for rapid transit purposes. On August 8,1905, the respondent, T. Ellett Hodgskin, was appointed one of the commissioners of appraisal in place and stead of one of the- commissioners originally appointed, who had died. . Between that date and June, 1910, a large amount of testimony was taken relating to the title of the
The grounds of attack may be classified under three heads: First, a rancorous condition of mind which affects the said commissioner ■ to such an extent that hedías ceased to occupy an impartial position between the litigants; second, neglect of his duties as such commissioner ; and, third, the fact that at various times during his term of. office as such commissioner he has appeared as counsel for various clients in other procéedings against the city of a somewhat similar character.
For the first four and a half years of his term of service, and down to the spring of 1910, when a newly appointed assistant to the corporation counsel assumed charge of these proceedings, no criticism seems to have been warranted or made upon the first ground stated. Since that date the record discloses that on several occasions there have been unfortunate clasliings between the said assistant and the commissioner, and in connection there,wi.th some expressions of anger. Infirmity of temper in a judicial officer is deeply to be regretted. Reasonable allowance, however, should be made for human weakness, for the great mental and nervous strain resulting from the discharge of the duties of such an office, and particularly is this the case where it is manifest that outbreaks of temper are due in part to provoking or insulting conduct and remarks on the part of counsel. Unless such irritability is indulged in to such an extent as to indicate an inability, after the outbreak is over, to resume self-control, and calmly. and dispassionately reviéw the evidence and determine the questions presented, a. judicial officer should not on that account alone be removed. "Without reviewing at length the evidence here presented, we think that it utterly fails to indicate any such mental bias. We think, ..too, that the evidence hot only' fails to show any neglect of his official duty
It would seem that the immediate and proximate cause of this proceeding on the part of the counsel for the city is that in May, 1910, just at a time when he hoped and expected to be able, to close the taking of testimony in one or more of the test cases above referred to, and submit the same to the commission for its final decision, the commissioner in" question was obliged to and did leave the country, for a short trip to Europe. He was absent just four weeks. It appears without dispute" that such absence was due to an imperative business engagement, and that immediately upon his return he was ready and willing to resume the discharge of his duties. We can appreciate the disappointment that the corporation counsel may have experienced, if thereby he was prevented from making a record for promptness and dispatch, in bringing to a close a proceeding which, under the control of his predecessors in office, had extended over nearly seven years. But this disappointment should not have caused him to forget either the previous years of faithful service or the exigencies of the occasion.
The third and last ground of attack presents other features. It appears that between December, 1904, and February, 1910, there was a proceeding pending which had been instituted by the city of" New York to acquire title to land in the borough of Brooklyn to be used as an approach to the Manhattan bridge1 that between August, 1905, and May, 1906, a proceeding was pending to acquire land for widening Livingston street in the same borough; and that between September, 1908, .and May, 1910, a proceeding was pending to acquire land in Cleveland place and Broome street, in the borough of Manhattan. In each of these proceedings, the law firm of which said commissioner is a member .appeared as attorneys for various property owners whose rights were affected thereby, and in many instances, both before and after bis appointment, said commissioner personally appeared therein as counsel. It also appears that in 1908 an action, was brought by the city of New York against a corporation known as the Realty Associates to restrain it from using a building for . school purposes in alleged violation of the Building Code of said city. In the latter case the said commissioner appeared as counsel for said corporation before the referee, at the
The order appealed from should, be affirmed, with ten dollars costs and disbursements.
Thomas and Rich, JJ., concurred; Cake, J., concurred in result; Jenics, F. J., taking no part.
Order affirmed, with ten dollars costs and disbursements.