| N.Y. Sup. Ct. | Dec 6, 1940
This is an application under article 78 of the Civil Practice Act, for an order directing that respondent restore to the petitioner his chauffeur’s license and certificate of registration.
On February 14, 1938, petitioner pleaded guilty to driving while intoxicated, a violation of subdivision 5 of section 70 of the
Respondent’s objection to this proceeding under article 78 is not well taken. Subdivision 6 of section 71 of the Vehicle and Traffic Law states that, “ Revocation or suspension hereunder shall be deemed an administrative act reviewable by the Supreme Court as such.” We are not in accord with People v. Cohen (128 Misc. 29" court="N.Y. Sup. Ct." date_filed="1926-08-13" href="https://app.midpage.ai/document/people-v-cohen-5419758?utm_source=webapp" opinion_id="5419758">128 Misc. 29) wherein it is held that the review contemplated relates to suspension or revocation not upon a conviction. A review in such an instance could have been had without reference to the provision in subdivision 6.
There is no question but that this court in a proper case should direct the Commissioner to restore a license in a proceeding brought under article 78. That question has been definitely settled by the Court of Appeals in the case of Matter of De Martino v. Mealey (284 N.Y. 231" court="NY" date_filed="1940-11-19" href="https://app.midpage.ai/document/matter-of-demartino-v-mealey-3601491?utm_source=webapp" opinion_id="3601491">284 N. Y. 231).
In view of the present state of the law there is no question but that the Commissioner must restore the petitioner’s license without any limitation whatsoever. By subdivision 6 of section 71 of the Vehicle and Traffic Law, as amended by Laws of 1940, chapter 677, effective April 21, 1940, it is provided: “ No suspension or revocation of a license or certificate of registration shall be made because of a judgment of conviction if the suspending or revoking officer is satisfied that the magistrate who pronounced the judgment failed to comply with section three hundred and thirty-five-a of the Code of Criminal Procedure. In case a suspension or revocation has been made and the Commissioner is satisfied that there was such failure, he shall restore the license or certificate of registration or both as the case may be.” Under this amendment, which qualifies section 94-a of the Vehicle and Traffic Law, it is mandatory that the Commissioner restore the license and certificate of registration no matter when revoked, for the use of the words “ has been ” or “ some other expression denoting past time, is construed as retrospective, when constitutional difficulties do not forbid.” (McKinney’s Consolidated Laws, book 1, p. 74; Matter of Anderson, 178
The respondent urges that the judgment of the magistrate is binding because it may not be attacked collaterally. The Magistrates’ Court is an inferior court. (Inferior Criminal Courts Act, § 2.) It is admitted that the magistrate did not comply with the provisions of section 335-a of the Code of Criminal Procedure. Such a failure renders the judgment void. (People v. Sutcliffe, 255 A.D. 299" court="N.Y. App. Div." date_filed="1938-11-04" href="https://app.midpage.ai/document/people-v-sutcliffe-5355711?utm_source=webapp" opinion_id="5355711">255 App. Div. 299.) Moreover, a mere inspection of the record shows that the magistrate failed to obey the mandatory provision of law. Certainly it appears upon the face of the record that his judgment cannot stand up under collateral attack. (People ex rel. Perkins v. Moss, 187 N.Y. 410" court="NY" date_filed="1907-02-26" href="https://app.midpage.ai/document/people-ex-rel-perkins-v--moss-3612322?utm_source=webapp" opinion_id="3612322">187 N. Y. 410.) The test as to “ whether a judgment is void or voidable is to be determined from an inspection of the record.” (34 C. J. 514; Matter of Doey v. Howland Co., 224 N.Y. 30" court="NY" date_filed="1918-06-04" href="https://app.midpage.ai/document/claim-of-doey-v-clarence-p-howland-co-3622473?utm_source=webapp" opinion_id="3622473">224 N. Y. 30; Matter of Heinze, 179 A.D. 453" court="N.Y. App. Div." date_filed="1917-07-02" href="https://app.midpage.ai/document/in-re-the-estate-of-heinze-5246998?utm_source=webapp" opinion_id="5246998">179 App. Div. 453; appeal dismissed, 222 N.Y. 530" court="NY" date_filed="1917-11-27" href="https://app.midpage.ai/document/in-re-the-estate-of-heinze-3586504?utm_source=webapp" opinion_id="3586504">222 N. Y. 530.) This judgment is void and, therefore, may be successfully attacked. Nor can it be successfully argued that the magistrate having acquired jurisdiction of the person and of the subject-matter, his judgment may not be collaterally attacked. It is quite clear that his action is void because he had no authority to take away this license. The rule is that this court can permit a collateral attack upon a judgment of another court even of plenary jurisdiction when it appears that that court had not the right or power to do the act complained of. Thus this court properly held that the Supreme Court of the District of Columbia did not have the power to strike out an answer of the defendant and attack the entry of judgment because of a contempt for failure to appear in court and pay a sum of money as ordered. (Hovey v. Elliott, 145 N.Y. 126" court="NY" date_filed="1895-02-26" href="https://app.midpage.ai/document/hovey-v--elliott-3606695?utm_source=webapp" opinion_id="3606695">145 N. Y. 126; affd., 167 U.S. 409" court="SCOTUS" date_filed="1897-05-24" href="https://app.midpage.ai/document/hovey-v-elliott-94722?utm_source=webapp" opinion_id="94722">167 U. S. 409.)
The proposition is also well stated by the Supreme Court of the State of Colorado: “ Jurisdiction, in its fullest sense, is not restricted to the subject-matter and the parties. If the court lacks jurisdiction to render or exceed its jurisdiction in rendering, the particular judgment in the particular case, such judgment is subject to collateral attack, even though the court had jurisdiction of the parties and of the subject-matter.” (People ex rel. Arkansas, etc., v. Burke, 72 Col. 486; 212 P. 837" court="Colo." date_filed="1923-01-08" href="https://app.midpage.ai/document/people-ex-rel-arkansas-valley-sugar-beet--irrigated-land-co-v-burke-6569097?utm_source=webapp" opinion_id="6569097">212 P. 837, 844.) It is the lack of power of the magistrate that renders his judgment void. “ Nevertheless in the actual rendition of the judgment, the court must
Motion is granted. Settle order.