127 A.D. 640 | N.Y. App. Div. | 1908
Charges against the respondent were submitted to this court upon the petition of William Travers Jerome, James W. Osborne and Edward M. Shepard, attorneys and counselors at law, one of the petitioners being the district attorney of New York county and the other petitioners being counsel for the defendant in a criminal action brought in the Supreme Court, in which the respondent appeared as a witness, and the charges were based upon the testimony of the respondent in that action. The petition alleged that the respondent is a justice of the Court of Special Sessions of the city of New York for the first division, having been appointed, on or about January 1, 1904, and as such justice was forbidden bylaw to carry on any business; that the respondent was, from the 1st of July, 1895, to the 1st of January, 1904, a city magistrate of the city of New York for the first division, and as such city magistrate was forbidden by law from carrying on any business.
The gravamen of this charge seems to be that the respondent was carrying on during the period for which he had'been a justice of the Court of .Special . Sessions, a business in violation of section 1416 of the charter of the city of Hew York (Laws of 1901, chap. 466). . The relator was charged with owning, managing, editing, printing, canvassing for and selling certain printed publications known as Town Topics, The Smart Set and Fads and Fancies, and the business of owning, managing, directing and controlling certain corporations specified.
These charges having been served upon the respondent, be submitted an answer. The evidence in relation thereto was taken before a referee, and the question was then presented to the court for such, action as was required.
Section 17 of article 6 of the Constitution provides that “Justices of the peace and judges or justices of inferior courts not of .record, and their clerks, may be removed for cause, after dub notice and an opportunity of being heard, by such courts as are or may be prescribed by law.” Section 28 of chapter 601 of the Laws of 1895 provides that “ The justices of the Court of Special Sessions and the
Upon an application of this character the court is required to investigate charges made against a judicial officer. In neither the Constitution nor the statute is the grotind for removal specified; but the court can act upon no charges unless the respondent has had notice thereof and an opportunity to be heard. We are confined, therefore, in determining this question to an investigation of the charges preferred, against the respondent and to. determine whether those charges, if proved, are a sufficient cause for his removal. Section 25 of chapter 601 of the Laws of 1895 (as amd. by Laws.of 1897, chap. 382), re-enacted as section 1416 of the charter of the city of New York, provides, in the words of the charter, that “No person shall be appointed to the office of justice of the Court of Special Sessions in The City of New York, unless he shall ■ be a resident of the said city and of the division of the city for which heshall.be appointed; nor unless he shall have been admitted to practice as an attorney and counselor at law in the courts of this State at least ten .years prior to the date of such appointment. No such justice shall receive to his own use any fees or perquisites of office; nor shall any such justice hold any other public office, or carry on any business, or practice as ah attorney or counselor at law in any court in this State, or act as referee or receiver; but each ‘such justice shall devote his whole time and capacity, so far as the public interests demand, to the duties of his office.”
I have no doubt but that a persistent and intentional violation of the prohibition contained in this statute would be a sufficient cause for removal. The object of. this statute is not only to insure the prompt and efficient discharge of the duties of a justice of the Court of Special Sessions, but also to prevent a justice of the court from making such connections and having such relations with others as would justify a question.as to the impartial and proper performance of his judicial duties. The justice is required to be an attorney of ten years’ standing, and upon his acceptance of the office he is- required to relinquish the practice of the law and is prohibited from acting as referee or receiver. He can hold no other public office,.
It would serve no useful purpose to analyze this voluminous testimony and I shall attempt to do no more than to state the conclusion at which I have arrived. I do not find it proved that this relator accepted any office in this corporation that imposed upon him any active duties in relation to the corporation itself, or the business that it conducted. He was vice-president of the corporation, but charged with no specific duties in relation to it. There is no evidence that he actively engaged in the conduct of the business of the corporation; that he was responsible, either to the corporation or to its stockholders, for the conduct or management of the business, or that he actively interfered in any way in relation to it. In fact, the evidence is all the other way. Certainly if no one did anything more for this business than the respondent did, or was under obligation to do, the business would not have been carried on at all, and the conclusion that I have arrived at is that the charge of a violation of section 1416 of the charter is not sustained.
Counsel for the petitioners also insist that the respondent should be removed because no man is to be deemed fitted to fulfill the functions of a judicial officer who, while in office, deliberately and persistently engages in an enterprise that merits and invokes the contempt of all decent minded men; and this is based upon the fact that the publications with which the respondent has been connected are of such a disreputable character that they are a violation of both the civil and criminal law. I am doubtful as to whether these charges involved anything more than a charge of violating section 1416 of the charter as engaging in business in violation of the prohibition it contains. From the nature of the charges it would appear that the character of the bqsiness was simply stated in qon
My conclusion, therefore, is that the application should be denied . and the proceeding dismissed.
McLaughlin, Laughlin, Clarke arid Scott, J'J., concurred.
' Application denied and proceeding dismissed. Settle order on notice.
See Laws of 1895, chap. 601, § 25, as amd. by Laws of 1897, chap. 882; re-enacted in Laws of 1901, chap. 466, §§ 1401, 1416.— [Rep.