86 A.D. 278 | N.Y. App. Div. | 1903
Lead Opinion
The facts which the return states' to have occurred before Mr. Justice Marean in my opinion are sufficient to uphold an adjudication finding the relator guilty of contempt; and 1 should have no hesitation in agreeing with the presiding justice were it not for the' decision of the Court of Appeals in the case of People ex rel. Barnes v. Court of Sessions (147 N. Y. 290) in regard to the contents of the commitment in such a proceeding as this. There, although the
The authority or correctness of this decision cannot be questioned here, and it is impossible to sustain this conviction without disregarding the rule therein laid down, unless we are prepared to hold that the statement in the commitment or final order, to the effect that the relator, in the immediate view and presence of the court, behaved in an insolent and disorderly manner which tended to interrupt the proceedings of the court and impair the respect due to its authority, is a sufficient statement of the particular circumstances of the offense. The presiding justice thinks it is enough, but I find myself unable to adopt that view. The statement that an attorney behaved in an insolent and disorderly manner conveys no idea whatever as to the particulars of his conduct. There are scores of ways in which insolence may be manifested, and innumerable sorts of disorderly behavior. It is difficult, of course, in a written statement, to convey to the mind of the reader a photographic impression of what occurred at the time of an alleged contempt, such as this, but the facts set out in this very return show that it is entirely possible to particularize to some extent and lay before the tribunal of review, in the commitment or final order itself, the very circumstances which are relied upon as constituting the offense. I think that the decision in the Bournes case requires this to be done, and that, because it has not been done in the case at bar, it is our duty to annul the determination. Were it not for the authority cited, I should be disposed to hold that the facts stated in the return might be regarded as helping out the commitment sufficiently to sustain the conviction.
Woodward and Jerks, JJ., concurred; Goodrich, P. J., read for affirmance.
Dissenting Opinion
The relator seeks by writ of certiorari to review a determination of Mr. Justice Mabean", adjudging the relator guilty of a criminal contempt committed in the immediate presence of the court, while the relator, as counsel for a. defendant, was conducting, a trial before the justice and a jury.
Section 2138 of the Code of Civil Procedure provides that, where a writ of certiorari is issued by the Appellate Division to review the determination of an inferior tribunal in a case like the one at bar, it must be heard upon the writ and return and the papers upon which the writ was granted. These papers show that the order under review .was entered in an action based on a claim that the plaintiff as a broker had sold two- houses. to the defendant therein, and had paid to it a portion of his brokerage commission on the .consideration . that- he should have the leasing of the property. Relator was counsel for the defendant. The plaintiff was under examination as a witness on -his -own behalf when the occurrence upon which the relator’s contempt is- predicated arose. The petition contains the stenographer’s minutes .of the testimony and the return embodies the same'testimony, with the allegations of the justice- in regard, thereto in brackets, as follows: “ Q. In the month' of -February last, 1902, did you have the sale of two buildings known as 320 and 322 East ll-3th Street? A. Yes, I sold those two houses to this corporation, Societa Co-o.perativa Corleonese Francesco Bentivegna—. Q. (By the Court): You sold it as a broker ? A. Yes, sir. I sold these two houses to these same people who are here to-day—. Q. Who was the owner of these' premises ? - A. P. L. ■ Marlow. Q. What was the consideration price of that ? [Objected to as immaterial, incompetent and irrelevant. Objection. sustained.] Q. You received a commission on that ? A. Yes, I received $500, and out o'f these $500 I paid $300 to these people — [Objected to.] Witness [Continuing]: In consideration that they would give me the privilege of leasing their property. I want to say what I have to say —:.. [Objected to.]- Witness: I want just to say what I — in a'legal way, your Honor." Mr. Palmier!: The-judge is here to sayas to that. Witness: The judge don’t object to what I have' to say.. Mr. Palmieri: That question called • for yes or no, and I move to strike out everything else this witness
The return also states that “ During the whole time after he was first directed to sit down, Mr. Palmieri’s tone, air and bearing were flagrantly insolent, defiant and offensive toward the court and in connection with what he did and said, and refused to do, as above detailed, tended directly to interrupt the proceedings of the court and to impair the respect due to its authority. Thereupon the court so determined and summarily adjudged him guilty of a criminal contempt and fined him $50. And caused the following entry to be made in the minutes: 6 John Palmieri was adjudged guilty of; a criminal contempt in that he did on this 20th day of June, 1902, during the sitting of the court, in its immediate view and presence, behave in an insolent and disorderly manner, which behavior tended directly to interrupt the proceedings of the court and to impair the respect due to its authority, whereupon said Palmieri was fined Fifty ($50) Dollars which he paid to the clerk in attendance. Mr. Palmieri paid the fine to the clerk saying that he paid under protest.’ ”
Under section 2135 of the Code of Civil Procedure the relator could have applied for an order for a further return, but as he did not do so, we must accept the allegations of fact in the return as final. There can be no question but that these allegations are sufficient to justify the action of the court in adjudging the relator guilty of a criminal contempt, and we should have no hesitation in dismissing the writ except for. the condition of the. entry in the minutes of the court. In regard to this, the question arises whether, as required by section 11 of the Code of Civil Procedure, “ the particular circumstances” of the offense are set forth in the mandate of commitment. The relator cites People ex rel. Barnes v. Court of Sessions (147 N. Y. 290) as authority that the final order, or. commitment, or mandate must designate the particular misconduct of which the
For these reasons I think that the writ should be dismissed, with costs.
Determination annulled, without costs. ■