90 N.Y.S. 499 | N.Y. App. Div. | 1904
The motion to dismiss the charges collectively and separately was in the nature of a demurrer on the ground that the facts stated, if proven, would not warrant the removal of the respondent. The ■denial of the motion and the order’ of reference necessarily involved an adjudication that if all the charges, were true they would justify his removal; but they do not necessarily constitute an adjudication that any one or more of the charges standing alone would be sufficient. Many of the charges are connected .and have a material
By virtue of these provisions of constitutional and statutory law the respondent may be removed for any misconduct in office or willful neglect of duty. A judicial officer may not be removed for merely making an erroneous decision or ruling, but he may be removed for willfully making a wrong decision or' an erroneous ruling or for a reckless exercise of his judicial functions without regard, to the rights of litigants, or for manifesting friendship or favoritism! toward one party or his attorney to the prejudice of another and to the destruction of his usefulness as a magistrate through the loss, of public confidence in his fairness or integrity.
The respondent was fifty-eight years of age. He is a graduate of' the public schools of the city of Few York, of Goldsmith’s Business. College,- of Columbia University, took a course of one year in civil law at Heidelberg University, and was admitted to the bar in 1874.. He was elected a justice of the District Court of Few York in 1893; and of the Municipal Court, second district, in 1899. It is not; cláimed that he was incompetent, nor could it well be, for his judgment was mature; he was’ well educated and possessed of sufficient, legal learning.
The charges were prosecuted by counsel for. the..petitioner with industry, energy and ability. The respondent was ably defended
The second charge differs quite materially from the others, and will be considered first. It presents the question as to whether the* respondent-has ceased to be an “inhabitant” of the district, and, if' so, whether that is “cause” for removal. Section 1353 of the* revised Greater Hew York charter provides that a Municipal Court, justice shall be “a resident and elector” of the district for which hze shall be elected or appointed; that he shall not engage in any other business or profession, or hold any other public office, or act as a referee or receiver, but shall devote his entire time, so far as the public interest demands, to the performance of his official duties. The Public Officers Law (Laws o,f 1892, chap. 681, § 20)< provides that every office shall be “ vacant ” before the expiration of the term thereof upon the incumbent’s ceasing to be an “ inhabitant ” of the political subdivision of which he is required to-be a “ resident ” when elected or appointed. The respondent was-, eligible for the office when elected and when he qualified and entered upon the performance of his duties; but it is claimed that, he thereafter moved to White Plains, H. Y. His counsel contends-that this question can only be determined by a quo warranto proceeding. In overruling the respondent’s motion to dismiss this, charge, I think we have decided that he may be removed on this, ground, and I am of that opinion now. It is not entirely clear in these circumstances that the respondent, who was eligible and duly
The 4th charge alleges a violation of section 63 of the Code of Civil Procedure in permitting those not attorneys to practice in the Municipal Court. By virtue: of that section only attorneys and counselors of courts of record are permitted to practice in the Municipal Court of the city of Hew York, and a justice who knowingly permits a violation thereof is guilty of a misdemeanor. (Code Civ. Proc. § 64.) It. satisfactorily appears that one Max Levine,, not an attorney, as the respondent well knew, not only was permitted to practice in the respondent’s court for years as often as he liked,, which was quite frequently, but also after the specific objection had been taken that he was not an attorney and authorized to so practice. These facts are also important in connection with the charges of favoritism toward this same individual. The referee, in reaching the conclusion that the specification was not sustained, in so far as-it relates to the respondent’s permitting Isaac Brinn, not an attorney, to practice, was more considerate toward the respondent than the facts warranted. The evidence shows that the respondent, knowing Brinn not to be an attorney, permitted him to practice quite generally, the same as Levine.
Counsel for the petitioner agreed that the 5th charge, that the respondent permitted clerks whose certificates had not been filed to answer at the call of the calendar, is trivial, as reported by the referee. Without examining the -evidence or expressing an opinion thereon, this charge should, therefore, be dismissed.
The facts upon which' the 6th, 8th, 12th and 14th charges are based are of the same general nature, and are so interwoven that they will be considered together. They allege partiality, favoritism,, corruption and the abuse of judicial discretion in the conduct and decision of cases. The referee recommends that , they be all sustained except the specification of favoritism toward Max D. Steuer and Israel M. Lerner and that the favoritism was not habitually exercised except in favor of Aaron Morris. There is no evidence that the respondent received or accepted any pecuniary-benefit other than his salary for any of his official acts and we believe that he did not. We are, however, convinced by the evidence that
The 7th charge alleges willful insubordination and it involves the attitude of the respondent towards the decisions of the appellate-courts and his refusal to follow them. Although the referee thinks the respondent should be exonerated on this charge, except in so far as it is embraced in the charges of favoritism, and it is not pressed.
The 9th charge alleges that the respondent connived at the. bringing of actions in his court which belonged elsewhere. The referee deemed the evidence insufficient to sustain the charge. The practice of assigning claims so that actions may be brought in a particular district, for the convenience of the attorneys who are to have charge thereof, undoubtedly exists; but that alone does not invalidate the assignment of the cause of action. The practice ought not. to be encouraged, but the evidence does not connect the respondent, with any of the assignments and we are, therefore, also of opinion, that the charge should be dismissed.
The 10th charge alleges that the respondent corruptly refused to-allow actions to be removed to the City Court and to transfer-actions to other District Courts. In actions in the Municipal Court, with certain specified exceptions, where damages exceeding $250 are-demanded, the defendant at his election after issue joined and before-an adjournment upon his application, and upon giving an undertaking as therein provided, in an amount to be fixed by the court, not. exceeding twice the amount of the damages demanded, is entitled to an. order transferring the case to the City Court. (Revised Greater R. Y. Charter, § 1366; Municipal Court Act, § 3.) If an action is brought, in the Municipal Court in a district in which neither party resides it, must be transferred to the proper district if the defendant so demands, upon or before joinder of issue. (Revised Greater R. Y. Charter, § 1370; Municipal Court Act, § 25.) The referee has sustained, three of the specifications under this charge. Qne relates to the-respondent’s refusal to allow a case to be removed to the City Court and the other two relate to his refusal to transfer cases to other District Courts. Counsel for petitioner cites evidence tending to-support other specifications not sustained by the referee. The-evidence fairly sustains one specification relating to a refusal toalldw a removal and another relating to a refusal to allow a transfer. Standing alone we would hesitate to hold this charge sufficient to require the removal of the respondent, but the evidence adduced, thereunder indicates that his judicial action was the result of favoritism and we think it highly probable that the respondent was influ
The 11th charge relates to placing cases upon the calendar where the return of. service of process had not been made within the time prescribed therefor.. Rule 4 of the Municipal Cotirt Rules, •duly adopted and binding, provides that to entitle a case to go . upon the calendar the summons must be returned to the clerk’s office the -day before it is returnable. This is an eminently proper rule and is calculated to facilitate the- timely making 'of a calendar for the -convenience of the parties: and their attorneys. It is evident, in view of this rule, that if the return of service be not filed in time the defendant would be justified in assuming that the case had been withdrawn or discontinued. At any rate the rule was binding on the respondent and he did not observe it. ..He not only added cases do the calendar in violation of the rule but added cases to the calen•dar after the return hour of the summonses had expired and the regular calendar had been called; and did this on one occasion ¡against the objection of the attorney for the defendant who happened "to be in court, and on another occasion without any appearance for 4lie defendant. The respondent frankly admits that he suspends "this rule whenever he deems it proper. Some, if not all, of these acts -of misconduct were committed for the purpose of favoring his friends.
The 13th charge alleges the withholding of decisions on motions .¡and the reception of papers ex parte. It is not sustained by the ref■eree, is not urged by counsel for petitioner, and should be dismissed
The 15th charge alleges deportnient unbecoming a justice of the Municipal Court,. The 18th also relates to his deportment ¡and the effect upon spectators and on the community. These two -charges may, therefore, be properly considered together. The referee recommends that they both be sustained and we are of opinion that they are fairly supported by the evidence. The respond-ent while on the bench publicly exercising judicial functions has at times been guilty of conduct and given public utterance to sentiments, not only highly undignified but showing prejudice against •classes of attorneys and litigants on account of their nationality, -and also a determination to conduct judicial proceedings arbitrarily, ■and despotically and willfully refusing .to accord to parties or their attorneys their clear constitutional and statutory rights. If these
The 1.6th charge and specifications thereunder allege acts of ■oppression in granting illegal ex pa/rte orders in actions pending in ■other District Courts. Rule 15 of the Municipal Court Rules provides that ex pa/rte applications may be made to any justice. This rule only authorizes applications in actions pending in one district to •A justice of another district for such orders as may be granted by a justice as distinguished from the court. It is not authority for such applications when the order may only be granted by the ■court. The court in each district is separate and distinct from the oourt in each other district, and it is manifest that there should be no interference by one judge with matters pertaining to the court in another district. The only authority for ordering the exhibition ■of a writing or account declared on in an action in the Municipal Court is contained in section 165 of the Municipal Court Act, and it is conferred upon the court and not upon a'justice. It does not authorize the examination- of books as by a bill of discovery. That is not within the jurisdiction of the Municipal Court. The extension of the practice in the courts of record to the Municipal Court, by section 20 of the Municipal Court Act, was merely intended to regulate the practice in matters over which the Municipal Court has jurisdiction. The order granted ex parte by the respondent in an ■action pending in another district requiring the plaintiff to deliver his books at the office of the defendants, a firm of attorneys — to •one of whom respondent had previously shown favoritism—for inspection, being an order that could only be. granted by the court,
The 17th charge alleges that the respondent, actuated by desire; to favor certain plaintiffs, granted judgments and body executions-without due service of process and contrary to law. The referee-reports, and we find, that the evidence fairly sustains this charge in.
We,, therefore, find all the charges sustained upon one or more specifications, except the 3d, 5th, 7th, 9th and 13th. We are convinced that the respondent has not the proper judicial temperament, nor has he a proper appreciation of the rights of litigants to have a fair and impartial hearing. The interests of the public forbid that his official misconduct be condoned, and require his removal.
It follows that the respondent should be adjudged guilty of the charges as stated and should be removed from the office of justice of the Municipal Court, second district, borough of Manhattan, Hew York.
O’Brien, Ingraham, McLaughlin and Hatch, JJ., concurred.
Application granted.