In re the Removal of Deuel

98 N.Y.S. 297 | N.Y. App. Div. | 1906

Per Curiam:

There was presented to this court, upon -notice to the respondent, ' a petition-praying- for the removal of the respondent from the position of justice of the Court of Special Sessions of the city of Hew York. The petition contained certain charges made ¡against -the respondent, and in opposition to the application the respondent appeared, making a preliminary statement, submitting that the petition should be dismissed, or that the petitioner should .be required to file an amended petition.

The Court of Special Sessions was constituted or continued by chapter 601 of the Laws of 1895. By section 1 of that act the Police Courts of the city and county of Hew York were abolished. By section' 2 of the act (as amd. by Laws of 1897, chap. 382) provision was made for the appointment of twelve city magistrates, and section 12 provides that the mayor “ shall appoint five justices of the court of special sessions of the city and county of Hew York; ” and section 13 provides that the Court of Special Sessions “ shall be composed of and must be held by three of the justices of the court of special sessions appointed pursuant to this act.” Section 25 (as amd. by Laws of 1897, chap. 382) provides 'that “Ho person shall, be appointed to the- office of justice of the court of special sessions in the-city of Hew Yorb, unless he shall be a resident of said city and.shall have been admitted to practice as an attorney and counsellor at law in the courts of this State at least ten years prior to the date of such appointment;” that “Ho city magistrate or justice of the court of special sessions appointed pur-: suant to this act shall receive to his own use any fees or perquisites of office; nor shall any such magistrate or justice hold any other public office, or carry on any business, or practice as an attorney or counsellor at law in any court in this State, or act as referee; but each magistrate or justice shall devote his whole time and ¡capacity,, so far as the public interests demand, to the duties of his office”’. Section 28 provides that “ The city magistrates and their clerks, and the justices of the court of special sessions and the clerk of said court appointed pursuant to this act may be removed for cause after due.. notice and an opportunity of being heard by the General Term of the Supreme Court in the first department; or, after the first day of January, eighteen hundred and ninety-six, by the Appellate Division of the Supreme Court in the first department.” These provisions, with the exception of section 28, were, continued by the charter of 1897 (Laws of 1897, chap. 878, § 1390 et seq. as amd.),- and by the charter of 1901 (Laws of 1901, chap. 466, § 1390 et seq. as amd.). Section 1416 of the charter of 1901 contained substantially the same provisions as section 25 of the act of 1895 in relation to the qualifications of justices of the Court of Special Sessions and prohibited them from practicing as attorneys and counselorsat law in any court in this-State, or from holding any other public office, or carrying on any business. The act of 1895 was not repealed and is still in force, and under its provisions this court has power to remove the justices of the Court of Special Sessions “ for cause; ” thus following the provisions of section 17 of article 6 of the Constitution-, that “ justices of. the peace and judges or justices of inferior courts, not of record, and their clerks, may be removed for cause, after due notice and an opportunity of being heard, by such courts as are or. may be prescribed by law.”

We think that these charges present a situation which requires that this court should take cognizance of them and that the defendant should be required to answer. The respondent raises a point as to the constitutionality of the provision that a justice,of the Court of Special Sessions shall not carry on any business, but we think it clear that the Legislature that created the court and provided for-the appointment of the justices thereof had authority to provide for the qualifications of the justices to be appointed and to regulate their proceedings while in office. There was nothing that required any particular individual to become a justice of the Court of Special Sessions, and nothing that.invaded any of the constitutional rights of any individual, but any one who accepted an appointment as a justice of the Court of Special Sessions-was bound.to comply with, the provisions of the statute while holding the office. This respondent can engage at any time in. any business that he sees fit,, by resigning his position as a jnstice.of the Court of Special Sessions, but as long as he holds that -position he must comply with the Statute,

The other -objections taken, by the respondent, to the petition •should" not be discussed at this time. After the answer of the-respondent is filed, the question will then be presented ás to subsequent proceedings which can be determined when it arises» .The objection of the respondent to the petition is, therefore, overruled, and the respondent is required to answer within, ten days..

Present — Ingraham, McLaughlin, Laughlin, Clarke and Houghton, JJ.

Objections o-verrnled and respondent required to answer within ten days. .. Settle order on notice.