291 N.Y. 116 | NY | 1943
Lead Opinion
The appellant appeared in the Municipal Court of the City of New York as attorney for the defendant in an action entitledFamily Finance Corporation against Vincent J. McHugh. After the conclusion of the trial, the trial court directed the appellant to appear in court with counsel at a hearing at a specified time a few days later to show cause why he should not be punished "as and for a criminal contempt" of court. At the close of the hearing the trial court adjudged that statements made by the appellant in the "immediate view, presence and hearing of this court tended to impair the respect due to its authority and constituted a criminal contempt of this court, and that said Noah Rotwein pay a fine of $250.00 within five *119 days after service upon him of a copy of this order, certified, with notice of entry, and in default of the payment of said sum as a fine, said Noah Rotwein be committed to the common jail of the County of New York and there be imprisoned until the same be paid or until the period of ten days from the beginning of said confinement shall have expired; and that a commitment issue accordingly."
The Judiciary Law "enumerates the acts which constitute criminal contempt and prescribes the procedure for punishing and the nature and extent of the punishment." (Matter of Douglas v.Adel,
We have said that if the acts constituting a criminal contempt in the immediate view and presence of the court "are seen or heard by the presiding judge so that he can assert of his own knowledge the facts constituting the contempt in the mandate of commitment * * * no proof need be given. The knowledge of the judge takes the place of proof and his recital in the mandate of commitment of the facts upon which the adjudication of contempt is based is sufficient." (Matter of Douglas v. Adel, supra, at pp. 146, 147.) Since in the case now under review the statements of counsel which it is said constitute a criminal contempt were addressed to the judge presiding in a judicial proceeding, and were heard by him, he refused to take any proof but asserted "of his own knowledge the facts constituting the contempt in the mandate of commitment." The fact that the appellant made the statements as asserted in the mandate is not challenged by the appellant and we assume is not open to challenge. His challenge is directed to the sufficiency of the asserted facts to constitute a criminal contempt. His petition *120 for a review of the mandate of commitment in accordance with the procedure approved by this court in Matter of Douglas v. Adel (supra) has been dismissed on the merits by the court at Special Term and the order of Special Term has been affirmed by the Appellate Division, one justice dissenting.
The "particular circumstances of his offense" as set forth in the mandate are that: "On April 30, 1942, at about 11 A.M., at Trial Term, Part 17, of this Court, in the trial of an action then pending in the Municipal Court of the City of New York, Borough of Manhattan, Second District, entitled Family FinanceCorporation, plaintiff, against Vincent J. McHugh, defendant, Noah Rotwein, attorney for the defendant in said action, at the conclusion of the trial of said action, and after the rendition of the decision by the Court sitting without a jury, made a motion to set aside the verdict as against the weight of evidence and moved for a new trial, in the course of which said Noah Rotwein stated in the immediate view, presence and hearing of the Court and all attorneys, litigants and other persons then present in said courtroom, as reasons for said motion: `Reason No. 1. I tried one case before your Honor several months ago involving a finance company. I don't remember the name of the case. My adversary, however, was a Mr. Melvin Howard Osterman. During the course of the trial your Honor made certain off the record remarks which indicated your Honor knew about the case before it came on before him. Your Honor at that time was sitting in Central Non-jury, in calendar part, and your Honor selected that case out of order and had the case tried before him, whereas your Honor sent other cases out to other parts, and made certain off the record remarks about me which indicated your Honor knew the case was coming up before him.' Said Noah Rotwein further stated in the immediate view, presence and hearing of the Court, the following: `I think perhaps unwittingly the Court, possibly by virtue of a prior connection as attorney for a finance company, perhaps unwittingly the Court tends to discount all defenses raised by borrowers from finance companies. I think, in view of the fact, I think it was improper for the Court to hear this case, and I move for a new trial on the basis of those statements, with all due respect to the Court.'" *121
It cannot be doubted that a mandate of commitment for the summary punishment of a person charged with having committed an act constituting a criminal contempt is insufficient unless it contains a statement of "the particular circumstances of his offense," based upon proof or upon knowledge of the presiding judge, and unless such offense constitutes a contempt within the definition of the Judiciary Law. "If the particular circumstances of the offense were not required to be set forth, there would be nothing that the accused could have reviewed, or that he could interpose as a defense to a subsequent conviction for the same act. If the court saw fit to call his act, no matter what it might be, a criminal contempt, that determination would of necessity be final, even though the act of the accused consisted in the putting on of his hat as he was going out of the courtroom door, and failed to come within any of the provisions of the Code constituting a contempt of the court." (People ex rel. Barnes
v. Court of Sessions,
It is shown by the stenographer's minutes, and is not disputed, that the Trial Judge refused to take proof intended to establish justification for the statement of counsel, or in regard to any other matter. The proceedings to review the commitment were dismissed at Special Term on the ground that "the court correctly refused to permit petitioner an opportunity to prove the truth of the charges made by him, since, even if they were true, that would not excuse petitioner's utterance of them in open court in connection with a motion for a new trial in the case which petitioner had tried before respondent. If the latter was guilty *122
of the charge that he had acted improperly in connection with a previous case tried by petitioner before him several months earlier, petitioner's proper remedy was to make complaints to the proper officers, so that proceedings for respondent's removal might be instituted (see People ex rel. Barnes v. Court ofSessions,
"Punishment for a criminal contempt is a drastic remedy for willful wrong." (Matter of Spector v. Allen,
Actual bias of a judge is not a ground for disqualification under section
The order of the Special Term and that of the Appellate Division should be reversed, without costs, and the mandate annulled, but without prejudice to any proceeding that may hereafter be initiated and prosecuted in accordance with this opinion.
Dissenting Opinion
My dissent from the decision about to be made rests upon remarks, recited in the mandate of commitment, made by the appellant when, at the close of all the evidence and in support of a renewal of his prior motion requesting the Trial Justice to disqualify himself, the appellant charged the Trial Justice with misconduct, not in connection with the case then on trial but in a different case tried "several months" previously, the title of which he did not recall. As I view the record in the present proceeding it appears that the appellant, in the presence of the court, made insolent statements which were irrelevant to the issues then being tried and which tended to cast doubt upon the integrity and fairness of the Trial Justice. Those statements were of such a character as to dictate the inference of an intent by the appellant to impair the respect due to the authority of the court.
LOUGHRAN, RIPPEY and DESMOND, JJ., concur with LEHMAN, Ch. J.; LEWIS, J., dissents, in opinion in which CONWAY, J., concurs.
Orders reversed, etc. *125