author: Crane, J.

text:
    In the Matter of the Application of Harry H. Evens, Individually and as Comptroller of the City of Binghamton, et al., Appellants, against The Public Service Commission of the State of New York for the Second District, Defendant, and William G. Phelps, as Receiver of the Binghamton Railway Company, Respondent.
    Public Service Commission — railroads •— prohibition — power of Commission to regulate fares on consolidated street railway — writ of prohibition properly denied.
    1. The powers of the Public Service Commission to regulate fares on the consolidated street railways in the city of Binghamton depend upon the nature of the franchises granted to the original companies and the subsequent action of the city authorities in modifying or abrogating their conditions.
    2. Upon examination of the franchises granted to eight street railway companies operating in and about the city of Binghamton, since consolidated into one, held, as to seven thereof, that on the face of their franchises the rate of fare is subject to regulation by the Public.Service Commission and as to the other that a formal contract entered into with the city relative to a change in motive power and the maintenance and construction of electric passenger railroads in the city modified its franchise, and where consents subsequently given by the city for extensions of its lines were granted upon express conditions of compliance with provisions of the Railroad Law reserving to the Legislature the right to regulate fares, it cannot be successfully maintained that the power of the Legislature did not extend to other portions of the same route. The Public Service Commission has jurisdiction, therefore, to determine rates of fare on the consolidated railway and a writ of prohibition was properly denied.

      Matter of Evens v. Public Service Commission, 214 App. Div. 122, affirmed.
    (Argued June 22, 1927;
    decided October 4, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 21, 1925, which reversed an order of Special Term granting a motion for an absolute writ of prohibition forbidding the defendants from taking further proceedings on an application for permission to increase passenger fares on street railways and denied said motion.

      John J. Irving, Corporation Counsel (Herbert H. Ray of counsel), for appellants.
    The Public Service Commission has no power to abrogate or modify a fare provision contained in a consent of a municipality to the construction of a street railroad. (Matter of Quinby v. Public Service Commission, 223 N. Y. 244; 227 N. Y. 601; People ex rel. West Side Railway Co. v. Barnard, 110 N. Y. 548; Matter of Niagara Falls, 229 N. Y. 333; People ex rel. Village of Glens Falls v. Public Service Comm., 225 N. Y. 216; Matter of International Ry. Co. v. Public Service Comm., 226 N. Y. 474; People ex rel. City of New York v. Nixon, 229 N. Y. 356; Village of Mamaroneck v. Public Service Comm., 208 App. Div. 330; 238 N. Y. 588.) The consent by the city to the use of electric power did not abolish the term of the franchise relative to a five-cent fare. (Finucane v. Board of Education, 190 N. Y. 76; Utley v. Donaldson, 94 U. S. 29.)

      Thomas J. Keenan for respondent.
    There are no conditions or restrictions in any of the franchises granted by the city of Binghamton to the predecessors of the Binghamton Railway Company which prevent the Public Service Commission from passing upon the receiver’s application for an increase in fare on the lines of the Binghamton Railway Company. (Matter of Village of Mamaroneck v. Public Service Comm., 208 App. Div. 330; 238 N. Y. 588; Matter of Quinby v. Public Service Comm., 223 N. Y. 244; 227 N. Y. 601; People ex rel. Village of South Glens Falls v. Public Service Comm., 225 N. Y. 216; Matter t of International R. Co. v. Public Service Comm., 226 N. Y. 474; Matter of City of Niagara Falls v. Public Service Comm., 229 N. Y. 333; People ex rel. Garrison v. Nixon, 229 N. Y. 575.) The provisions with reference to rates of fare ceased to be applicable when the roads of the Binghamton Railway Company’s predecessors ceased to be operated by animal power. (Westinghouse Electric & Manufacturing Co. v. Binghamton Ry. Co., 225 Fed. Rep. 395; Moore v. City of Albany, 88 N. Y. 396.) The city consented to the regulation of rates by the Legislature when it consented to the building of the extensions because such consents expressly provided that the provisions of the Railroad Law pertinent thereto should be complied with. (Matter of International Ry. Co. v. Public Service Comm., 226 N. Y. 474; Village of Goshen v. Wallkill Transit Co., 21 State Dept. Rep. 325; Matter of United Traction Co. v. Public Service Comm., 219 App. Div. 95.)
   Crane, J.

On December 6, 1901, the Binghamton Railway Company, of which the defendant, respondent, William G. Phelps, is receiver, was created by the consolidation of the Binghamton Railroad Company and the Binghamton, Lestershire and Union Railroad Company.

On March 31, 1894, the Court Street and East End Railroad Company and the West Side Street Railway Company were merged into and became owned by the Binghamton Railroad Company.

On August 22, 1892, the Binghamton Railroad Company was created by the consolidation of the Binghamton and Port Dickinson Railroad Company and the Binghamton Street Railroad Company.

The Binghamton Street Railroad Company was created on May 24, 1890, by the consolidation of the Washington Street and State Asylum Railroad Company, Park Avenue Railroad Company, the City Railway Company and the Binghamton Central Railroad Company.

The Binghamton Railroad Company, therefore, on and after 1894 had gathered to itself and consisted of seven railroad companies. By taking in the Binghamton, Lestershire and Union Railroad Company, the Binghamton Railway Company was the consolidation of eight railroad lines operating within and about the city of Binghamton. In this opinion I shall speak of the Binghamton Railroad Company as the Binghamton, Lester-shire and Union Railroad Company, operated outside the city, and its franchise is in no way involved in this proceeding.

The receiver, above named, has applied to the Public Service Commission for permission to increase the rate of fare on the consolidated railroad. The Special Term granted a writ of prohibition, holding that the Public Service Commission had no power to regulate fares on the railroads in the city of Binghamton. The Appellate Division has reversed the Special Term and denied the application for prohibition. The powers of the Public Service Commission in this matter depend upon the nature of the franchises granted to these seven railroad companies and the subsequent action of the city authorities in modifying or abrogating their conditions. We will take them up one by one.

The Park Avenue Railroad Company apparently has no franchise from the city, as it was built on a private right-of-way.

The Binghamton and Port Dickinson Railroad Company received its franchise by a special act of the Legislature (Chap. 501 of the Laws of 1868) and the amount of fare may, therefore, be regulated by the Legislature, or the Public Service Commission.

The franchise granted to the West Side Street Railway Company of the city of Binghamton, dated September 24, 1889, contained no condition or limitation as to fare. It contained the following provision:

“ Fifth. Such consent is given upon the express condition that the provision of the act of the legislature of the State of New York entitled An Act to provide for the construction, extension, maintenance and operation of street surface railroads and branches thereof, in cities, towns apd villages,’ passed May 6, 1884, and the amendments thereto which may be pertinent hereto shall in good faith be complied with; also, the reasonable ordinances and requirements of the City of Binghamton.”

Chapter 252 of the Laws of 1884, section 13, being the act referred to in this franchise, fixed the rate of fare at five cents for one continuous ride.

As to the franchise for this railroad, the rate of fare being fixed by an act of the Legislature could be thereafter regulated by the Legislature or the Public Service Commission.

The Court Street and East End Railroad Company resolutions or franchises, dated April 1, 1887, and May 10, 1887, granted consent to the construction and maintenance of the road upon the express condition that the provisions of law under which the company is incorporated which are pertinent to said consent shall be complied with.” No other reference is made to the rate of fare. The company was incorporated under chapter 252 of the Laws of 1884, above referred to, and as the rate of fare was limited by section 13 of that chapter, the Legislature thereafter had the power of regulation, so likewise, the Public Service Commission.

The Washington Street and State Asylum Railroad Company.-— The franchise was by ordinance passed January 2, 1872, containing in section 5 thereof these words: “ The company may charge and collect from any person on entering their cars or carriages, for riding any distance upon said road on the same continuous route, within the corporation limits, a sum not exceeding five cents.” Section 23 of the ordinance has this: The restrictions, requirements and regulations herein imposed upon said railroad company as the condition of this grant, shall be imposed, and required of all railroad companies using horse or mule power, which may hereafter build, establish or maintain railroads in other of the streets in the said city, and for such purpose this resolution is declared to be ' an ordinance in relation to street railroads.’ ”

As this franchise was granted prior to January 1, 1875, when section 18 of article 3 of the State Constitution became effective, the regulation of fares upon the railroad was left subject to the police power of the Legislature or the Public Service Commission.

City Railway Company.— The resolution adopted by the common council of the city of Binghamton, March 17, 1884, giving to this company power to construct its road, subjected it “to an ordinance in relation to street railroads passed January 2, 1872.” This is the ordinance granting the franchise to the Washington Street and State Asylum Railroad, above referred to.

In 1872 the Legislature had the reserved power to regulate the fares of street surface railroads. This ordinance or franchise was to read as though that reserved power was a part of the franchise. When, therefore, this resolution relating to the City Railway Company made applicable the ordinance in relation to street railroads passed January 2, 1872, that ordinance must be taken with its limitations existing in 1872. At that time, the franchise fixing the fare at five cents was subject to modification by the Legislature. Therefore, the City Railway Company’s franchise or rate of fare was subject to the power of the Legislature, or the Public Service Commission.

In summarizing our previous decision, this court said in People ex rel. Garrison v. Nixon (229 N. Y. 575): “ We think that the following classes of franchises fall outside the scope of our decisions in Matter of Application of the City of Niagara Falls v. Public Service Commission of the State of New York for the Second District and the International Railway Company (decided herewith) (229 N. Y. 333); Matter of Quinby v. Public Service Commission (223 N. Y. 244):

“ 1. All franchises granted directly by the legislature.

“ 2. All franchises granted by municipal authorities prior to January 1, 1875. Such franchises are subject to proper legislative regulation.”

Matter of International Ry. Co. v. Public Service Commission (226 N. Y. 474) is authority for our present holding regarding the West Side Street Railway Company and the Court Street and East End Railroad Company franchises.

On the face of these franchises themselves, the rate of fare is subject to regulation by the Public Service Commission.

There is only one other franchise to consider, that of the Binghamton Central Railroad Company. Resolution of the common council was passed May 7, 1883, giving this company the right to construct and operate a horse or mule railroad through certain streets. Section 3 reads:

“ Sec. 3. The cars to be used on said railroad shall be drawn by horses or mules, only at a speed not exceeding the rate of seven miles per hour, and the said company are hereby authorized and empowered to charge for and receive from each passenger carried in their cars for any distance within the City of Binghamton, a sum not exceeding five cents; and the company may run cars without any other conductor than the driver, but shall employ careful, sober and prudent agents — conductors and drivers — who shall keep a vigilant watch and lookout to avoid danger and negligence, and shall stop their cars to allow passengers to enter or leave the same.”

The Appellate Division has considered the rate of fare by this section to be linked up to the horse or mule motive power. This may or may not be correct. Standing by itself, I would have doubts as to whether the mere change of motive power to electricity, that is, a mere consent to such a change, would modify the provision as to the fare. There are other reasons to sustain the conclusion of the Appellate Division which I much prefer, and to me are unanswerable.

It would be strange indeed, if upon consolidation of all these various railroads into the Binghamton Railroad Company, a small portion only of the line — that of one of the roads — should be restricted to a five-cent fare, that as to the territory served by all the other consolidated roads, the rate of fare was subject to the powers of the Public Service Commission. Whatever we may spell out piecemeal from these various franchises, the public saw and dealt with one continuous consolidated line, with its branch connections. The common council of the city, after consolidation, treated with one corporation, the Binghamton Railroad Company.

Electrification of the road, as we all know, was a radical and expensive change in motive power. It required change in equipment as well as in power; poles, wires, new rails and roadbed had to be constructed. The consent of the city to the change was more than a mere consent; it was a contract entered into on April 26, 1892, between the Binghamton and Port Dickinson Railroad Company and the Binghamton Street Railroad Company (by consolidation, the Binghamton Railroad Company). After reciting the consent of property owners to the change, the consent of the city of Binghamton was recorded upon many conditions; the size and shape of the poles to be erected were specified; the city was given the right to use the poles for the fire and police department wires and for its electric light plant. The contract also gave the right to the railroads to relay all their tracks and to build, maintain and operate a double track * * * and to make all proper and necessary connections between its said tracks and the tracks of any other street railway in the city of Binghamton * * * upon the express condition, however, that the said company shall replace all pavements on streets torn up by it,” etc. This contract further provided how much the railroad companies should pay to keep the surface of the street within the rails and for one foot outside thereof in repair. The Binghamton Street Railroad Company was also given the right to lay additional tracks. This contract was executed by the presidents of the railroads and the mayor of the city.

In view of the consolidation and the anomalous situation arising from the mixture of franchises, it is quite evident that on entering into this formal contract regarding the maintenance and construction of electric passenger railroads in the city, the parties considered that they were fixing all obligations one toward the other in reference to such operation. If it were intended that a five-cent fare should be fixed or continued, it seems but natural that we would find some provision for it in this contract. The reason it is not there is because all the parties knew that there was no limitation for a five-cent fare on any of the roads except that which had been formerly owned by the Binghamton Central Railroad Company.

In this sense, therefore, and because of this formal contract, I think» the consent to the change of motive power did modify the franchise of the Binghamton Central Railroad Company which in 1890 became part of the Binghamton Street Railroad Company.

But a better and further reason for the abrogation of this resolution of 1883, relating to the Binghamton Central Railroad Company is to be found in the consents which were subsequently given by the city to the Binghamton Railroad Company for the extension of its various lines. In December of 1895 (Exhibits 15 and 17 of the case) franchises were given to the Binghamton Railroad Company (which, as I have said, included the Binghamton Central Railroad Company) to extend, construct, operate and maintain a single track railroad along numerous streets named in the resolution or franchise of the common council. These were granted upon express conditions, one of which reads as follows: “ Second. That the provisions of Article 4 of an act of the Legislature of the State of New York, passed June 7th, 1890, known as the railroad law as amended by an act of the said Legislature passed April 15th, 1892, pertinent thereto, shall be complied with.” Article 4, referred to (L. 1890, ch. 565, amd. L. 1892, ch. 676), includes section 101, fixing the rate of fare, which section ends with these words: “ The legislature expressly reserves the right to regulate and reduce the rate of fare on any railroad constructed and operated wholly or in part under such chapter or under the provisions of this article.”

Can it be that the Legislature has the reserved power to regulate the rate of fare for these extensions of the Binghamton Railroad Company, and has no power over other portions of the route?' Is one line to be thus chopped up? Taking into consideration all these franchises, the consolidation of the various companies, the actions of the common council of the city of Binghamton, the specific references to the provisions of the Railroad Law (Cons. Laws, ch. 49), the fact stands out unaffected by theory or argument that the city of Binghamton never considered until lately (1918) that the rate of fare on the Binghamton Railroad Company was limited by contract with the city to five cents and was, therefore, beyond the power of regulation by the Public Service Commission.

That Commission has jurisdiction to determine how much the passengers shall pay to ride on the cars of the Binghamton Railway Company, and while we disagree with the Appellate Division in its reasons, we do agree with its conclusion in denying a writ of prohibition.

The order should be affirmed, with costs.

Andrews, Lehman and O’Brien, JJ., concur; Cardozo, Ch. J., dissents as to franchises of Washington Street and State Asylum Railroad Company and the franchises of the Binghamton Central Railroad Company and the City Railway Company as originally granted, and in other respects concurs; Pound, J., dissents; Kellogg, J., not sitting.

Order affirmed, etc.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Marie S. Livingston, as Administratrix of the Estate of Robert L. Livingston, et al., Respondents, v. Bayard U. Livingston et al., Respondents, and Ethel P. Hough, as Executrix of Charles M. Hough, Deceased, et al., Appellants.
    Appeal — practice — Court of Appeals has power to allow amendment of complaint to sustain judgment appealed from — amendment to obtain additional relief should be sought in Supreme Court.
    The Court of Appeals has power to allow an amendment to .the complaint, by inserting omitted .allegations in order to conform the allegations to the proofs and to sustain the judgment, or to amend the entire record to conform to the proofs (Civ. Pr. Act, § 105), but the omissions which may properly be supplied are those which might be fatal to the complaint, and where no objection is taken to the complaint on appeal and the judgment follows it and the proof, an application to amend the complaint so as to obtain further relief should be addressed to the Supreme Court.
    Reported below, 216 App. Div. 698.
    (Submitted October 3, 1927;
    decided October 4, 1927.)
    Motion for leave to amend complaint.

      Alfred R. Page, Philip M. Brett, A. Delafield Smith and William F. Allen for motion.
    No one opposed.
   Per Curiam.

Civil Practice Act, section 105, provides:

“ At any stage of any action, special proceeding or appeal, a mistake, omission, irregularity or defect may be corrected or supplied, as the case may be, in the discretion of the court, with or without terms, * *

This action was brought for the construction of a will and to obtain a declaratory judgment that plaintiffs are the owners of certain real estate of which certain defendants claim to be the owners. It described five parcels of real estate as being all the real property of which the testator died seized. On this appeal, it appeared from appellants’ brief that the testator died seized of three other parcels of real estate which the so-called life tenant had sold in her lifetime. The real question is whether she was life tenant or owner. The proposed amendment alleges the facts and asks for an accounting for the proceeds. The motion is not formally opposed but it is suggested that this court has no power to grant it. That this court has power to allow an amendment to the complaint, by inserting omitted allegations in order to conform the allegations to the proofs and to sustain the judgment, or to amend the entire record to conform to the proofs, is clear. (Reeder v. Sayre, 70 N. Y. 180,190.) But no objection is taken to the complaint on this appeal. The judgment follows it and the proofs. The omissions which may properly be supplied by amendment on appeal, under section 105 are omissions which might be fatal to the complaint unless they were so supplied.

This motion, if granted, would deprive this court of jurisdiction to hear the pending appeal for the defendants would have the right to answer the amended complaint and a. new judgment would follow. That is not the purpose of section 105 so far as it relates to amendments on appeal. The Supreme Court has control of its own judgment and the relief should be sought there.

Motion to amend complaint denied, without costs.


text:
    Peter Markiewicz, Appellant, v. Martin Thompson, Respondent.
    Appeal — judgment of Appellate Division unanimously reversing order of trial judge for new trial and reinstating verdict tantamount to unanimous affirmance.
    A judgment of the Appellate Division unanimously reversing an order of the trial judge for a new trial, and reinstating the verdict, is tantamount to the unanimous affirmance of the judgment, and an appeal therefrom will be dismissed if taken without leave.

      Markiewicz v. Thompson, 220 App. Div. 311, appeal dismissed.
    (Submitted June 20, 1927;
    decided October 4, 1927.)

      Motion to dismiss an appeal from a judgment, entered May 5, 1927, upon an order of the Appellate Division of the Supreme Court in the third judicial department unanimously reversing an order of the court at a Trial Term, setting aside a verdict in favor of defendant and directing reinstatement of the verdict.

      Charles J. Fryer for motion.

      Walter A. Fullerton opposed.
   Per Curiam.

In this action for personal injuries, there was a verdict for defendant. The trial judge set the verdict aside as against the weight of evidence. The Appellate Division unanimously reversed the order and reinstated the verdict. From the judgment entered upon the verdict, the plaintiff has taken this appeal after leave to appeal had been denied by the Appellate Division and by this court.

By the settled practice of this court, a judgment of the Appellate Division unanimously reversing an order of the trial judge for a new trial, and reinstating the verdict, is tantamount to the unanimous affirmance of the judgment, and an appeal therefrom will be dismissed if taken without leave (Garrison v. Sun P. & P. Assn., 222 N. Y. 691; Burns Mfg. Co. v. Clinchfield Products Corp., 231 N. Y. 561; Dashnau v. City of Oswego, 236 N. Y. 542; L’Ecluse v. Brokaw, 238 N. Y. 611; Warner v. N. Y., O. & W. Ry. Co., 239 N. Y. 507; Mike v. Levy, 241 N. Y. 577; cf. Huda v. Am. Glucose Co., 151 N. Y. 549).

A different question is presented where the trial judge, instead of granting a new trial, dismisses the complaint upon a reserved motion for that relief. In such a case, the Appellate Division, if it sets aside the dismissal, is not affirming, but reversing the only judgment in the record. If as incidental to that reversal, it adopts the verdict of a jury, and orders judgment thereon, the result is a new judgment superseding the old one, and so a judgment of reversal. The distinction is narrow, but it is settled by authority (Deyo v. Hudson, 225 N. Y. 602, 611; Alberti v. Heineman, 230 N. Y. 585).

The appeal now before us is subject to the additional objection that the one ruling challenged by exception is unsubstantial and frivolous in view of the defendant’s admissions at later stages of the record.

The motion should be granted and the appeal dismissed with costs and ten dollars costs of motion. Motion granted, etc.


text:
    In the Matter of Daniel Carey, Respondent, against Michael J. Cruise, City Clerk of the City of New York, et al., Appellants. Harrison C. Glore, Intervenor, Appellant.
    Constitutional law •— elections — term of office of Municipal Court justice elected to fill vacancy occurring other than by expiration of term.
    Chapter 829 of the Laws of 1920, providing that Municipal Court justices elected to fill a vacancy occurring other than by expiration of term shall be elected for the full term, except that if such full term would expire with an even-numbered year then for a term ending with the year prior thereto, is valid. Section 17 of article 6 of the State Constitution, providing that an election to fill a vacancy in the office of justice of the peace in a town, occurring before expiration of the term, shall be for the residue of the unexpired term, does not apply to Municipal Court justices in cities. (Matter of Markland v. Scully, 203 N. Y. 158; Matter of Trounstine v. Britt, 212 N. Y. 421, 431, distinguished and explained.) •
    (Argued October 3, 1927;
    decided October 7, 1927.)
    Appeal from a final order of the Supreme Court, made at the Kings County Special Term and entered August 31, 1927, which granted a motion for a peremptory order of mandamus requiring the city clerk of the city of New York to certify to the board of elections of the city of New York that a justice of the Municipal Court for the seventh district in the borough of Brooklyn is to be voted for in 1927, and directing the board of elections to publish a notice that nominations are to be made for such office and to receive and file petitions designating candidates for nomination to such office.

      George P. Nicholson, Corporation Counsel (Joseph P. Reilly of counsel), for City Clerk et al., appellants.

      Charles H. Kelby and Charles B. Law for Harrison C. Glore, intervenor, appellant.
    The statute of 1920 is not violative of section 3, article 12, or of section 17, article 6 of the Constitution of the State of New York. (Worthington v. London G. & A. Co., 164 N. Y. 81; Matter of Markland v. Scully, 203 N. Y. 158.)

      John B. Johnston and Ralph K. Jacobs for respondent.
    The amendment contravenes the provisions of section 3, article 12 of the Constitution inasmuch as it attempts to provide for the election for a full term in an even-numbered year. (Markland v. Scully, 203 N. Y. 158; Matter of Trounstine v. Britt, 212 N. Y. 421; Matter of Delehanty v. Britt, 212 N. Y. 457.) The amendment of the statute by chapter 829, Laws of 1920, contravenes the provisions of section 17, article 6 of the Constitution. (Matter of Worthington v. London G. & A. Co., 164 N. Y. 81; People v. Dooley, 69 App. Div. 512; 171 N. Y. 75; Matter of Markland v. Scully, 73 Misc. Rep. 363; 146 App. Div. 350; 203 N. Y. 158.)
   Crane, J.

At the general election held in November, 1917, one Edward A. Richards was elected for a full term of ten years to the office of justice of the Municipal Court of the city of New York for the seventh Municipal Court district in the borough of Brooklyn. His term, therefore, was to expire on December 31, 1927.

On November 5, 1919, he resigned his office, and an ad interim appointment was made.

At the general election held in November, 1920, the appellant, Harrison C. Clore, was elected to said office, and if his term ran for ten years, it would expire December 31, 1930. This would require an election in November of 1930, an even-numbered year, contrary to the provisions of section 3 of article XII of the Constitution. His term of office, however, by reason of chapter 829, Laws of 1920, expires December 31, 1929.

The applicant herein contends that Clore was elected for the unexpired term of Justice Richards, ending December 31, 1927. The Special Term has granted to the applicant a peremptory order of mandamus requiring the city clerk of New York to transmit to the board of elections a certificate stating that the office of justice of the Municipal Court for the seventh municipal district is to be voted for at the coming election in November, and requiring the board of elections to take the necessary procedure for such election.

The appellant bases his claim to a full term election less one year, as above stated, by reason of chapter 829 of the Laws of 1920 (Sec. 4 of the New York City Municipal Court Code) in force at the time of his election. That law reads:

Vacancy In The Office Of Justice. A vacancy occurring in the office of justice of this court otherwise than by expiration of term, shall be filled at the next ensuing general election for a full term, except that if such full term would expire with an even-numbered year, for a term ending on the last day of December next preceding the time when a full term would expire; such terms shall commence on the first day of January next after said election; and the mayor of the city of New York shall appoint a duly qualified attorney to fill such vacancy in the interim, within twenty days after the same occurs.”

According to this law, Glore was elected for a term ending on the last day of December "next preceding the time when a full term would expire,” to wit, December 31, 1929.

The petitioner has succeeded in convincing the court below that chapter 829 of the Laws of 1920 is violative of article VI, section 17, of the Constitution, which reads:

“Justices of the peace; district court justices.— \§ 17. The electors of the several towns shall, at their annual town meetings, or at such other time and in such manner as the Legislature may direct, elect Justices of the Peace, whose term of office shall be four years. In case of an election to fill a vacancy occurring before the expiration of a full term, they shall hold for the residue of the unexpired term. Their number and classification may be regulated by law. 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. Justices of the Peace and District Court Justices may be elected in the different cities of this State in such manner and with such powers, and for such terms, respectively, as are or shall be prescribed by law; all other judicial officers in cities, whose election or appointment is not otherwise provided for in this article, shall be chosen by the electors of such cities, or appointed by some local authorities thereof.”

The words in this section, “ they shall hold for the residue of the unexpired term,” have been held to apply to Municipal Court justices in cities as well as to justices of the peace elected for the towns. We cannot agree with this conclusion. The section itself makes a distinction in this particular between the justices of the peace in towns and similar officers elected in cities. The first sentence provides that the electors of the several towns shall elect a justice of the peace whose term of office shall be four years. There is no power in the Legislature to change this term of office; the Constitution fixes it. In this particular, the justices of the peace in towns are set apart from justices in cities, holding a like office. The provision for an election for the unexpired term is also limited to the justices in the several towns. The last sentence of the section deals with the city justices, and fixes no term. Justices of the peace and District Court justices may be elected for such terms as shall be prescribed by the Legislature. This shows clearly that the two classes of justices, those in the towns, those in the cities, are governed by different provisions.

We think, therefore, that it was constitutional for the Legislature to provide that Municipal Court justices, elected to fill a vacancy should be elected for the full term and not for the unexpired term of the office, provided section 3 of article XII of the Constitution was complied with, making such full term expire in an odd-numbered year. This was done in this case by chapter 829 of the Laws of 1920.

The history of section 17 of article VI of the Constitution also bears out this conclusion. The section was originally inserted in the Constitution in 1846 and applied solely to justices of the peace of the several towns, who were to be elected for four years. The judiciary article, as amended in the Constitution of 1869, added to this section (then known as section 18) the provisions relating to justices of the peace in cities. In 1894 the Constitution was again amended and the old number restored as it is at present, article VI, section 17.

The action of the petitioner and the view of the court below have no doubt been influenced, and partially justified, by the opinion of this court in Matter of Markland v. Scully (203 N. Y. 158). Some things were there said which may have thrown doubt upon this question, and yet a careful reading of the opinion in connection with the facts of that case indicates that this court did not hold or intend to hold that by section 17 of article VI the limitation for filling vacancies in Justices’ Courts was also applicable to Municipal Courts in cities. The statute under consideration in that case might require an election to fill a vacancy for a full term, which expiring in an even-numbered year, would violate section 3 of article XII. This court had that difficulty in mind as Judge Haight says in his opinion: “It is claimed that this clause [Sec. 17 of art. VI] has reference to filling vacancies of justices of the peace in towns, and not to justices of the peace and District Court justices in cities. But it will at once be seen, on referring to the election of judicial officers in section 3, article 12, that if the vacancy is filled for a full term, it will in every case, where the vacancy occurs in an odd- [even] numbered year, violate the provisions of that section. It consequently appears to me that the provision with reference to filling vacancies for the unexpired term must also apply to the election of judicial officers to fill vacancies in cities, at least insofar as the cities embraced in that section are concerned.”

We are not unmindful of the force which these words add to the position of the respondent and yet it is quite evident that Judge Haight intended by these words to mean that even if section 17 of article VI did not apply to Municipal Courts in cities yet the law under consideration would violate section 3 of article XII. In any case it would be unconstitutional. The point which is now before us was not then under direct consideration and this is apparent from the summary which Judge Haight makes in his opinion of the questions decided. He states the three points upon which the law then under discussion was unconstitutional as follows: “First, in prohibiting an election unless the vacancy occurs three months before the general election. Second, in requiring the mayor to appoint a person to fill the vacancy in the interim, which in this case would be for two years and about five months. Third, in requiring the election to fill vacancies to be for a full term, which might occur in an even numbered year.” Section 17 of article VI was not one of the determining factors.

It is humanly impossible to write opinions so as to fit all unforeseen circumstances that may arise in the future or to prevent the words of the opinion sometimes having an apparent although no real application.

These same reflections apply to the point that the words except to fill vacancies ” of section 3, article XII, refer not only to the occasion but also to the term; that is, that the Constitution here means by “ vacancy ” the unexpired term. Vacancy is not used in this sense in the other sections of the Constitution providing that vacancies ” in other judicial offices shall be filled for the full term of that office.

It is claimed that the opinion in Matter of Trounstine •v. Britt (212 N. Y. 421, 431) indicates that such should ■ be the interpretation of the word “ vacancy ” because Judge Hogan there mentioned that it was the policy of this State in the event of a vacancy in an office that the successor elected thereto should hold office only for the unexpired portion of the term fixed by law. The policy of this State is determined by its Constitution and its laws. There is no policy, I know of, which cannot be superseded by either. The policy which Judge Hogan had in mind and referred to was that which he considered existed in the absence of legislation or decision upon the subject. In this case the Legislature has acted by the provisions of the law of 1920 above referred to.

For the reasons here stated, the order should be reversed and the application denied, without costs.

Cardozo, Ch. J., Pound, Andrews, Lehman, Kellogg and O’Brien, JJ., concur.

Order reversed, etc.


author: Pound, J.

text:
    James H. Murnan, Respondent, v. Wabash Railway Company, Appellant.
    Courts —■ jurisdiction — State courts may decline jurisdiction of action for tort co nmitted in foreign State where both parties are non-residents even though brought under a Federal statute —• motion to vacate service of summons should be granted or denied only in exercise of sound discretion.
    The courts of this State exercise their discretion in all other cases where a tort action is brought by one non-resident against another and, therefore, may refuse, in their discretion, to entertain jurisdiction over a cause of action arising out of a tort committed in a sister State, where both the plaintiff and defendant are non-residents, even though the action be brought under the Federal Employers’ Liability Act.
    - A litigant who brings his action under that act stands before the court in no different attitude than a litigant who brings his action under the statute of a sister State. He may not be cast out because he is suing under the act of Congrecop He may not enforce his rights merely because he is suing under the act. A motion for an order vacating service of the summons in such an action should not be granted as matter of law, nor should it be denied except in the exercise of a sound discretion. (Mondou v. N. Y., N. II. & H. R. R. Co., 223 U. S. 1, distinguished.)

      Murnan v. Wabash Railway Co., 220 App. Div. 218, reversed.
    (Argued October 5, 1927;
    decided October 18, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 14,. 1927, which reversed, as matter of law, an order of Special Term granting a motion by defendant to vacate service of the summons and complaint, and denied the motion.

      H. Brua Campbell, Winslow S. Pierce, N. S. Brown and F. C. Nicodemus, Jr., for appellant.
    The Supreme Court, in the exercise of its sound discretion, properly refused to entertain jurisdiction over the present action. (Payne v. N. Y., S. & W. R. R. Co., 157 App. Div. 302; Bagdon v. P. & R. Coal & Iron Co., 178 App. Div. 662;
      Waisikoski v. P. & R. Coal & Iron Co., 173 App. Div. 538; 228 N. Y. 581; Collard v. Beach, 81 App. Div. 582; Brennan v. P. & R. Coal & Iron Co., 178 App. Div. 920; Pietraroia v. N. J. & H. R. R. & F. Co., 197 N. Y. 434; Gregonis v. P. & R. Coal & Iron Co., 235 N. Y. 152.) The judicial discretion vested in the Supreme Court by the laws of this State to hear and determine, or to decline to hear and determine controversies between non-residents, is an integral part of the jurisdiction of that court. It is beyond the power of Congress to increase or diminish such jurisdiction, or to impair it in any way; and no attempt was made to do so in the enactment of the Federal Employers’ Liability Act. (Second Employers’ Liability Cases, 223 U. S. 1; Chambers v. B. & O. R. R. Co., 207 U. S. 142; St. Louis, Iron Mountain & Southern Ry. Co. v. Taylor, 210 U. S. 281; Buffington v. Day, 11 Wall. 113; Walton v. Pryor, 276 Ill. 563; Loftus v. Pennsylvania R. R. Co., 107 Ohio St. 352.)

      Charles B. Lewis, John Ambrose Goodwin, Leonard F. Fish and Thomas J. O’Neill for respondent.
    The court is without power under a motion of this nature to dismiss the complaint in an action under the Federal Employers’ Liability Act. (Mondou v. N. Y., N. H. & H. R. R. Co., 223 U. S. 1; Taylor v. Taylor, 144 App. Div. 634; 204 N. Y. 135; 232 U. S. 363; Missouri v. Taylor, 266 U. S. 200; Ulrich v. N. Y., N. H. & H. R. R. Co., 193 Fed. Rep. 768; Southern R. R. Co. v. Lloyd, 239 U. S. 496; Kansas City Southern R. Co. v. Leslie, 238 U. S. 599; Martin v. N. Y., N. H. & H. R. R. Co., 241 Fed. Rep. 696.)
   Pound, J.

This action is brought under the Federal Employers’ Liability Act to recover $50,000 damages for personal injuries alleged to have been sustained by plaintiff on February 28, 1926, while in the defendant’s employ at the defendant’s Oakwood yard at Detroit, Michigan, as the result of being thrown from the top of a caboose which collided with a locomotive. The defendant is an Indiana corporation. It maintains an office in this State for the conduct of its financial business and also for the purpose of soliciting freight and passenger business, and is to that extent doing business in this State. Plaintiff is a resident of Waterbury, Connecticut.

Defendant moved to vacate the service of the summons and complaint and to dismiss the action on the ground that the cause of action having accrued wholly without the State of New York, the jurisdiction of the Supreme Court, by reason of the non-residence of the parties hereto, is wholly discretionary, and that the court should, in the exercise of such discretion, decline to retain jurisdiction thereof. The motion was granted on this ground.

The Appellate Division reversed, denied the motion and certified the following questions to this court:

“ (1) Are the courts of this State invested with any discretion to decline jurisdiction of an action brought under the Federal Employers’ Liability Act by a nonresident of the State of New York against a foreign railroad corporation, doing business in the State of New York at the time of the commencement of the action?

“ (2) Should the motion of the defendant railway company for an order vacating the service of the summons and complaint herein and dismissing the action have been granted as a matter of law?

Section 47 of the General Corporation Law (Cons. Laws, ch. 23) provides:

“An action against a foreign corporation may be maintained by another foreign corporation, or, by a nonresident, in one of the following cases only: * * * 4. Where a foreign corporation is doing business within this state.”

Although the rule prohibits a court of general jurisdiction from refusing to exercise its jurisdiction in its discretion, it has often been held that the courts of this State may refuse in their discretion to entertain jurisdiction over causes of action arising out of a tort committed in a sister State where both the plaintiff and defendant are non-residents. (Gregonis v. P. & R. Coal & Iron Co., 235 N. Y. 152, 160, and cases cited.) While no controlling reason compelled, the Special Term refused to assume jurisdiction; it refused, it would seem, for reasons of convenience, to hear the case and vacated the service of the summons under the authorities referred to.

The Appellate Division held that the Federal Employers’ Liability Act which conferred, or recognized, concurrent jurisdiction in the State courts made it mandatory upon the State court not to refuse to exercise its jurisdiction, when it had such jurisdiction, in any case brought under the act. It relied on the case of Mondou v. N. Y., N. H. & H. R. R. Co. (223 U. S. 1). The case is authority for the bare proposition that where the State courts would exercise their jurisdiction except for the fact that the action is brought under the act of Congress, they may not refuse to exercise jurisdiction because the action is brought under the laws of the United States. The court said: “ The existence of the jurisdiction creates an implication of duty to exercise it * * *. We conclude that rights arising under the act in question may be enforced, as of right, in the courts of the States when their jurisdiction, as prescribed by local laws, is adequate to the occasion.” (p. 58.)

This general language read in connection with what was actually decided means nothing more than that the State courts must make no hostile discrimination against litigants who come within the act in question; that they must treat litigants under the Federal act as other litigants are treated; that they are to act in conformity with their general principles of practice and procedure and are not to deny jurisdiction merely because the right of action arises under the act of Congress.

The court seems to make this meaning clear. It says in substance that it is advised by decisions of the Supreme Court of Errors that the Superior Courts of the State of Connecticut are not only empowered to take cognizance of actions to recover for personal injuries and death but are accustomed to exercise that jurisdiction in cases where the right of action arises under the laws of another State. It says further: We deem it well to observe that there is not here involved any attempt by Congress to enlarge or regulate the jurisdiction of state courts or to control or affect their modes of procedure, but only a question of the duty of such a court, when its ordinary jurisdiction as prescribed by local laws is appropriate to the occasion and is invoked in conformity with those laws, to take cognizance of an action to enforce a right of civil recovery arising under the Act of Congress and susceptible of adjudication according to the prevailing rules of procedure.” (p. 57.)

The courts of New York exercise their discretion in all other cases where a tort action is brought by one nonresident against another under the laws of another State. The practice may be anomalous but it is well established. That Congress has undertaken to regulate the exercise of jurisdiction by our courts by making compulsory what in other similar cases is discretionary, seems an unreasonable conclusion and a resulting invasion of the powers of our tribunals as heretofore exercised. We conclude that a litigant who brings his action under the Federal Employers’ Liability Act stands before the court in no different attitude than a litigant who brings his action under the statute of a sister State. Lie may not be cast out because he is suing under the act of Congress. He may not enforce his rights merely because he is suing under the act.

The motion of the defendant for an order vacating the service of the summons should not have been granted as matter of law. Neither should it have been denied except in the exercise of a sound discretion. The rules of liability under the Federal act are of general application. They are in this respect wholly unlike local statutes, peculiar to the legislative policy of a single State. It is urged with force that it was reasonable for a resident of Connecticut in reduced circumstances to sue the defendant in New York, where he could obtain service of summons, rather than to go to Indiana where defendant was incorporated, or to Michigan where the accident occurred. As we have the case before us on a question of law only and it appears that the Appellate Division has not considered the question of discretion, we may properly remit the case to that court to review the order from that point of view.

The order of the Appellate Division should be reversed, with costs, and the case remitted to that court to review the exercise of discretion by the Special Term. Question number 1 should be answered in the affirmative and question number 2 in the negative.

Cardozo, Ch. J., Crane, Andrews, Lehman, Kellogg and O’Brien, JJ., concur.

Ordered accordingly.


text:
    Julius Keller, Jr., Appellant, v. J. Frank Butler, Respondent.
    Malicious prosecution — abuse of process — extradition — action for maliciously procuring arrest of plaintiff as fugitive from justice may be maintained irrespective of determination of criminal proceeding against him in foreign State.
    An action for damages may be maintained against one who falsely and maliciously and without probable cause procures the arrest of another as a fugitive from justice, notwithstanding there has been no determination of the criminal proceeding in the foreign State. The guilt or innocence of the plaintiff under the laws of the foreign State has no bearing upon the question of extradition, the only questions in such a proceeding being the identity of the alleged fugitive and his flight from the State where he is charged with crime, taking this State as his asylum.

      Keller v. Butler, 220 App. Div. 212, reversed.
    (Argued October 6, 1927;
    decided October 18, 1927.)

      Appeal from a judgment, entered June 2, 1927, upon an order of the Appellate Division of the Supreme Court in the second judicial department, which reversed an order of Special Term denying a motion for a dismissal of the complaint and granted said motion.

      Eugene S. Bibb for appellant. The complaint states a cause of action for malicious prosecution.

      (Orefice v. Savarese, 113 N. Y. Supp. 175; Anderson v. Dyer, 188 App. Div. 707; Burt v. Smith, 181 N. Y. 1; Kentucky v. Dennison, 24 How. [U. S.] 66; Ex parte Slauson, 73 Fed. Rep. 666; Tennessee v. Jackson, 36 Fed. Rep. 258; U. S. v. Pope, 27 Fed. Cas. 593; Roberts v. Reilly, 116 U. S. 80; People ex rel. Marshall v. Moore, 167 App. Div. 479; 217 N. Y. 632; Ex parte Reggel, 114 U. S. 652; Halberstadt v. New York Life Ins. Co., 125 App. Div. 830; 194 N. Y. 1.)

      Harold L. Allen for respondent.
    The refusal of the Governor to issue his executive warrant of rendition was neither a judicial determination, a determination upon the merits, nor a final determination in favor of the plaintiff in the action at bar. Likewise plaintiff’s discharge by the committing magistrate was not a judicial nor a final termination of the action. (Halberstadt v. New York Life Ins. Co., 194 N. Y. 1; People ex rel. Corkran v. Hyatt, 172 N. Y. 176; Matter, of Strauss, 197 U. S. 324; People ex rel. Lawrence v. Brady, 56 N. Y. 182; Kurtz v. State, 22 Fla. 36; People ex rel. McArthur v. Warden, etc., 205 App. Div. 650; Weglein v. Trow, 152 App. Div. 705.)
   Crane, J.

No cause of action, it is said, has been stated in the complaint, which has been dismissed. In effect this means that an action for damages cannot be maintained against one who falsely and maliciously and without probable cause procures the arrest of another as a fugitive from justice until a determination of the criminal proceeding instituted in the foreign State. According to the complaint, the defendant charged the plaintiff in the State of Florida with having committed larceny. Through the action of the defendant, the Governor of Florida made requisition upon the Governor of the State of New York for the extradition of the plaintiff who was in New York. The plaintiff was arrested upon the process of a magistrate issued in New York State under our procedure and brought before the Governor who determined that the prisoner was not a fugitive and should not be surrendered. Thereupon, the plaintiff was discharged from arrest. The plaintiff brings this action against the defendant for falsely and maliciously and without probable cause accusing him of being a fugitive from justice, whereby he was arrested in New York State as a fugitive and imprisoned. By the motion to dismiss the complaint, all these facts are conceded, yet it has been held that the plaintiff has no remedy for this malicious arrest or abuse of process until the charge pending in the Florida courts has been determined in his favor.

We do not take this view of the law. The guilt or innocence of the defendant of the crime committed according to the laws of Florida may be — in this case was — an altogether different matter from the extradition proceedings in the State of New York, which depended entirely upon the identity of the defendant and his flight from Florida, taking New York as his asylum. Unless the plaintiff was in the State of Florida at the time of the commission of the crime, he could not be extradited under the Constitution and laws of the United States. His actual, not his constructive, presence was necessary in the State of Florida to make him a fugitive. (Hyatt v. Corkran, 188 U. S. 691; McNichols v. Pease, 207 U. S. 100.) Therefore, it might be that he could be convicted of a crime committed through his instigation, if caught in the State of Florida, although he could not be brought from, another State upon any such charge. The extradition laws, as I have said, apply to fugitives; those who flee from the State where the crime has been committed. Therefore, when this plaintiff was arrested in New York State, the question was not one of his guilt or innocence — that could not be inquired into — rather it was the question of his presence in Florida at the time of the commission of the alleged crime, and his flight therefrom. Was he a fugitive? The complaint alleges that the defendant, knowing that the plaintiff was not a fugitive, maliciously caused his arrest under the extradition laws in the State of New York, and that after a hearing the plaintiff was released.

A proceeding was instituted in the State of New York against the plaintiff, recognized by our law, and which resulted in his being put in prison. Article IV, section 2, clause 2, of the United States Constitution, as supplemented by the act of 1793 (1 Stat. at Large, 302) and now embodied in sections 5278 and 5279 of the Revised Statutes, provides for the extradition of fugitives who flee from the State in which their crime has been committed. Before surrendering the prisoner, however, it is the duty of the Governor to determine whether or not the person arrested is a fugitive from the justice of the demanding State. (Hogan v. O’ Neill, 255 U. S. 52, 56.) Our Code of Criminal Procedure specifies the method by which fugitives shall be arrested, brought before the Governor and surrendered as demanded in the requisition. In section 827 it provides that the Governor may direct that any such fugitive be brought before him, and may for cause, by him deemed proper, revoke any warrant issued by him. It is made the duty of any officer arresting a person on the warrant of a Governor to take the prisoner before a judge of the Supreme Court, or a county judge, who shall inform the prisoner of the nature of the process, and that he may have a writ of habeas corpus to determine his identity. Procuring or inducing another to leave the State without compliance with these provisions is made a felony, indicating the care taken to insure of the identity of the prisoner, and that he is a fugitive from justice.

The complaint alleges that the plaintiff in this case was arrested upon the warrant of a magistrate before whom he was taken, and after some hours of confinement released on bail. This is the procedure outlined in section 828 of the Code of Criminal Procedure. In order to hold a prisoner until there can be a hearing, the magistrate may issue a warrant as a preliminary proceeding to the issuing of a requisition by the Governor of another State. An exemplified copy of an indictment found or other judicial proceeding in the State in which he is charged to have committed the offense may be received as evidence before the magistrate upon which to issue his warrant. The magistrate upon the arrest of the prisoner may hold him to await the warrant of the Governor, not to exceed thirty days. He may bail him in the meantime. This is the meaning of the allegations of the complaint in this case. The plaintiff was arrested in extradition proceedings through and by reason of the charge of the defendant pending the issuance of the warrant by the Governor of this State. He was brought before the magistrate and admitted to bail. Thereafter the Governor held his hearing as he was authorized to do (Code Civ. Pro. sec. 827; McNichols v. Pease, 207 U. S. 100, p. 108); and refusing his warrant, the magistrate subsequently released the bail and discharged the prisoner.

Here was a proceeding in this State instituted by the defendant resulting in the arrest of the plaintiff, his commitment by the magistrate, his subsequent release and discharge on the ground that he could not legally be extradited. The wrong complained against is that the defendant instituted this proceeding maliciously, knowing that the plaintiff was not a fugitive and without any probable cause to believe him to be subject to extradition. This proceeding is terminated in favor of the plaintiff. These matters constitute all the elements necessary to make out a cause of action for malicious prosecution. As I have before stated, the proceeding in this State in no way involved the guilt or innocence of the plaintiff under the laws of Florida; the determination of that issue in Florida would have no bearing upon the question of extradition, and extradition would have no bearing upon the question of guilt or innocence. (People v. Stilwell, 244 N. Y. 196.)

Most of these questions have arisen on habeas corpus proceedings. Our own Code of Criminal Procedure, as I have above stated, requires the arrested person to be informed of his right to such a writ. (People ex rel. Genna v. McLaughlin, 145 App. Div. 513.) The determination of the habeas corpus proceeding in favor of the prisoner and his discharge from arrest would, I take it, be conceded to be a determination of a proceeding in favor of the prisoner sufficient to form the basis of malicious prosecution. The Governor’s hearing and the subsequent discharge by the magistrate, above referred to, were likewise proceedings of a criminal nature, having like effect.

Even if this were not so, surely there must be some remedy afforded by the law for the willful and malicious arrest of another as a fugitive from justice when the charge is known to be false. Names and classifications of remedies are not indispensable to a court, although they may be convenient and necessary for the student. Justice may not tarry to tabulate. The fact is, such a wrong must have a remedy. It is provided either in the action for malicious prosecution or in an action for abuse of process. In the case of Johnson v. Carrington (7 Ohio Decisions, Reprint, 572), an action upon such a state' of facts as we have here was maintained as one for malicious prosecution. In Malone v. Belcher (216 Mass. 209) the defendant was sued for malicious abuse of process in causing the property of the plaintiff to be maliciously attached for the purpose of preventing a sale. The court in that case stated: It was not necessary in order to maintain the action to show a termination of the action in which the attachment was made, as it would have been in a case of malicious prosecution. The attachment for the purpose of preventing the sale to Peterson was a perversion of the object which the writ was intended by law to effect, and it was therefore immaterial whether the action in which the attachment was made had been terminated or not. But as to malice and want of probable cause the case stood differently.” As to these — malice and want of probable cause — the two actions are the same; that is, both in malicious prosecution and in the malicious abuse of process, malice and want of probable cause must be shown according to many authorities, the difference being that in the one the initial litigation must be terminated, while in the other it is the abuse of an incidental process which has caused the unjustifiable damage and the initial proceedings need not be terminated to give a cause of action. (See Cardival v. Smith, 109 Mass. 158.) Actions in the nature of malicious prosecutions have been maintained for the abuse of a search warrant (Boeger V. Langenberg, 97 Mo. 390); of injunction (Powell v. Woodbury, 85 Vt. 504; Mark v. Hyatt, 135 N. Y. 306; Rieger & Co. v. Knight, 128 Md. 189); of attachment (Lawrence v. Hagerman, 56 Ill. 68; Brand v. Hinchman, 68 Mich. 590). Termination of the main proceeding is not always essential for the maintenance of these actions. (See Spangler v. Booze, 103 Va. 276, and Zinn v. Rice, 154 Mass. 1.)

If, therefore, we should consider, as we do not, the requisition proceedings in the State of New York as incidental and not independent, an action should and would lie before the termination of the criminal action for the malicious abuse of the process of arrest in the State of New York under extradition proceedings.

One word about the complaint. The pleading may not have been drawn with the cause of action here stated solely in mind. We think, however, the allegations sufficiently broad and pointed to maintain the action here stated. For these reasons the judgment of the Appellate Division should be reversed and the order of the Special Term affirmed, with costs in this court and in the Appellate Division.

Cardozo, Ch. J., Pound, Andrews, Kellogg and O’Brien, JJ., concur; Lehman, J., absent.

Judgment accordingly.


text:
    In the Matter of Reuben L. Haskell, Appellant, against John H. Voorhis et al., Constituting the Board of Elections of the City of New York, Respondents.
    Elections — voting machines —■ names of candidates.
    The placing on voting machines of the name of a candidate, nominated by a regular party and also as sole candidate of an independent party for the same office, solely in the column of the regular party with its emblem and also the emblem of the independent party, does not, under the circumstances, constitute unjust discrimination to the prejudice of the candidate.

      Matter of Haskell v. Voorhis, 221 App. Div. 873, affirmed.
    (Argued October 25, 1927;
    decided October 26, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 24, 1927, which affirmed an order of Special Term denying a motion for a peremptory order of mandamus to compel defendants to place the name of the petitioner, nominated for the office of judge of the County Court of Kings county, to be filled at the general election to be held on the 8th day of November, 1927, in the party line and column of the Republican party with the party emblem of said party printed in connection with petitioner’s name, and in a separate line and column of the independent party and body, to wit, the Anti-Dry League, with the party emblem of said party printed in connection with petitioner’s name, and to place the name of the petitioner in a separate line and column of each of said parties and bodies, and to assign a separate line and column to the candidate and to the Anti-Dry League party and body, and to have all the voting machines to be used at the general election in and for the county of Kings arranged and prepared in accordance with such directions. The board of elections had declared its intention of placing petitioner’s name on the voting machines in the column of the Republican party with its emblem for county judge and also with the emblem of the Anti-Dry League, which had named him as its sole nominee.

      David F. Price and Reuben L. Haskell for appellant.
    The ruling of the court below is incorrect. (Matter of Hopper v. Britt, 203 N. Y. 144; 204 N. Y. 524; Matter of Callahan, 200 N. Y. 59; Matter of Burke v. Terry, 203 N. Y. 293.)

      George P. Nicholson, Corporation Counsel (Joseph P. Reilly of counsel), for respondents.

      Albert Conway for Democratic County Committee of Kings County.
   Per Curiam.

We hold in the circumstances of this case that there was no unjust discrimination to the prejudice of the petitioner.

The Anti-Dry League nominated a single candidate for a single office. A member of that league would have no difficulty in finding the name of that candidate upon the machine, and would not be diverted by the form of the machine into a belief that the name of such candidate was to be looked for elsewhere.

The question is not here whether unfairness or prejudice would result if the League had nominated other candidates whose names were placed upon a separate horizontal column to- the exclusion of the petitioner’s, and as to that we express no opinion.

The order should be affirmed without costs.

Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and O’Brien, JJ., concur; Kellogg, J., dissents.

Order affirmed, etc.


author: Cardozo, Ch. J.

text:
    The People of the State of New York ex rel. Benny Sabatino, Respondent, v. Edgar S. Jennings, as Warden of Auburn-Prison, Appellant.
    Habeas corpus — stay — appeal — notice of appeal to Court of Appeals from order of Appellate Division sustaining writ of habeas corpus and directing discharge of prisoner ineffective as stay — bail or recognizance not required — duty of warden to discharge prisoner forthwith.
    1. Notice of appeal to the Court of Appeals from an order of the Appellate Division sustaining a writ of habeas corpus and directing that the relator be forthwith discharged from custody is ineffective as a stay, the order of discharge retains its binding force, no bail or recognizance is required or permissible, and it is the duty of the warden forthwith to release the prisoner.
    2. Section 570 of the Civil Practice Act, providing that an appeal by a State officer stays the execution of the judgment or order appealed from, has no application to an appeal from an order directing the unconditional discharge of a prisoner upon a writ of habeas corpus.
    (Submitted October 24, 1927;
    decided October 28, 1927.)
    Motion by relator to be released from custody upon his own recognizance pending an appeal to the Court of Appeals from an order of the Appellate Division sustaining a writ of habeas corpus and directing the discharge of relator from custody.

      Benny Sabatino, in person for motion.

      Albert Ottinger, Attorney-General (Henry C. Henderson of counsel), opposed.
   Cardozo, Ch. J.

The relator is a prisoner in the State Prison at Auburn. More than three years ago, in March, 1924, upon his petition for a writ of habeas corpus, the Supreme Court adjudged that his term had expired, and ordered his discharge. His release being withheld, he sued out another writ in January, 1927, after intermediate applications had been made and denied. Upon the return thereto, the Supreme Court dismissed the petition and remanded him to prison, holding that the first order had been nullified by force of later events. The relator appealed to the Appellate Division of the Supreme Court for the fourth department. In June, 1927, that court reversed the order dismissing the proceeding, sustained the writ and directed that the relator be forthwith discharged from custody.

An appeal from that order is now pending in this court. Four months have elapsed, but the appeal has not yet been brought on for hearing. In the meanwhile the warden has kept the relator in prison and has disregarded the order for an immediate discharge. Without the aid of counsel the relator now asks that he be released upon his own recognizance until the appeal shall be determined.

Upon the entry and service of the order of the Appellate Division, the relator should have been discharged from custody in accordance with its mandate. The warden has relied upon section 570 of the Civil Practice Act, which provides that upon an appeal taken by the People of the State or by a state officer or board of state officers, or a board of supervisors of a county, the service of the notice of appeal perfects the appeal and stays the execution of the judgment or order appealed from, without an undertaking or other security.” That section has no application to an appeal by a State officer from an order directing the unconditional discharge of a prisoner upon a writ of habeas corpus. The pertinent section in such a situation is section 1269, which provides that “ a prisoner who has been discharged by a, final order made upon a writ of habeas corpus or certiorari * * * shall not be again imprisoned, restrained, or kept in custody, for the same cause.” It would be intolerable that a custodian adjudged to be at fault, placed by the judgment of the court in the position of a wrongdoer, should automatically, by a mere notice of appeal, prolong the term of imprisonment, and frustrate the operation of the historic writ of liberty. “ The great purpose of the writ of habeas corpus is the immediate delivery of the party deprived of personal liberty ” (Shaw, Ch. J., in Wyeth v. Richardson, 10 Gray, 240). The question has been much debated whether at common law there was any remedy by appeal either for prisoner or for People (Yates v. People, 6 Johns. 337; Wyeth v. Richardson, supra; Ex parte Jilz, 64 Mo. 205; Matter of Williams, 149 N. C. 436; Wisener v. Burrell, 28 Okla. 546.) The debate was silenced in this State by provisions of the Revised Statutes (2 R. S. 573, § 70), which have been carried forward without substantial change into the later codes of practice (Code Civil Pro. § 2059; Civ. Practice Act, § 1275). We have held that by force of those provisions the People may appeal from a final order of discharge (People ex rel. Hubert v. Kaiser, 206 N. Y. 46, 54, affg. 150 App. Div. 541, at p. 546). We have never held that the notice of appeal nullifies the mandate of discharge and works a supersedeas at the will of the custodian. There is indeed authority to the effect that a stay may not be granted even by order of the court (People ex rel. Young v. Stout, 31 N. Y. Supp. 421), though a different rule prevails, it seems, in other jurisdictions (Henderson v. James, 52 Ohio St. 242). We leave that question open. Certain it is at least that the writ may not be thwarted at the pleasure of the jailer. A statute suspending the effect of the discharge by the mere force of an appeal would be at war with the mandate of the Constitution whereby the writ of habeas corpus is preserved in all its ancient plenitude (Const, art. 1, § 4). “ The writ cannot be abrogated, or its efficiency curtailed, by legislative action ” (People ex rel. Tweed v. Liscomb, 60 N. Y. 559, 566). Little would be left of “ this, the greatest of all writs ” (People ex rel. Tweed v. Liscomb supra) if a jailer were permitted to retain the body of his prisoner during all the weary processes of an appeal begun without leave and languidly continued.

There is no occasion to determine at this time whether different considerations apply to proceedings under section 93 of the Insanity Law, where the question to be determined is whether one lawfully committed to an asylum has thereafter become sane. It is certain that other considerations affect proceedings in habeas corpus to determine the custody of infants, where custody is dependent upon equitable principles (People ex rel. Young v. Stout, supra; People ex rel. Lawrence v. Brady, 56 N. Y. 182, 192).

We hold that the notice of appeal to this court is ineffective as a stay, that the order of discharge retains its binding force, that no bail or recognizance is required or permissible, and that it is the duty of the warden forthwith to release the prisoner until the appeal shall be determined.

Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ., concur.

Ordered accordingly.


author: Lehman, J.

text:
    The People of the State of New York, Respondent, v. Peter A. Seiler, Appellant.
    Crimes — murder in first degree — trial — charge — under indictment in common-law form murder in first degree may be proved by showing killing while defendant was engaged in commission of felony — proper refusal to charge lesser degrees of homicide • — • order of trial prescribed by statute will ordinarily be followed but court may vary prescribed order — right to open and close — ruling that prescribed order should be followed constitutes no reversible error where no compelling reason existed for variation.
    1. Upon trial of an indictment in common-law form for murder in the first degree the People may prove the charge by showing that the homicide occurred while the defendant was engaged in' the commission of a felony.
    2. Where under the evidence presented, if the defendant was guilty of any penal offense, he was guilty of the crime of murder in the first degree, on the ground that the killing occurred while defendant and companions were taking by force property from the persons of others, and there is no evidence which upon any other logical theory would make the defendant share in the guilt of the slayer, it was proper for the court to charge that the jury must acquit the defendant unless it found that he was engaged in the robbery and to refuse to charge the lesser degrees of homicide. (People v. Koerber, 244 N. Y. 147, distinguished.)
    3. Section 388 of the Code of Criminal Procedure prescribes the order in which a criminal trial should proceed and ordinarily it will be followed but it does not take from the trial court all power to vary the prescribed order where it appears that variation would facilitate the course of justice in that particular ease. Even assuming, however, that the trial judge believed that the statute had deprived him of this power, his ruling that the order prescribed by the Legislature should be followed and that failure of counsel for defendant to open his defense immediately after the opening of counsel for the People would be considered a waiver of the right to open, and a refusal thereafter to permit defendant’s counsel to open on the ground that' under the statute he had waived that right, constitute no reversible error where it does not appear that any compelling reason existed for variation.
    decided October 28, 1927.)

      Appeal from a judgment of the Court of General Sessions in the county of New York, rendered May 16, 1927, upon a verdict convicting the defendant of the crime of murder in the first degree.

      Frederick L. Hackenburg and Maurice Bloch for appellant.
    The indictment did not authorize a conviction of the defendant for murder in the first degree in the course of a felony. (People v. Hoffman, 219 App. Div. 334; 245 N. Y. 588; People v. Schleiman, 197 N. Y. 385; People v. Norman, 231 N. Y. 454.) The substantial rights of the defendant were invaded and his conviction was without due process of law and in violation of the Constitution and statute as provided in capital cases. (Waissikoski v. Phil., etc., Co., 173 App. Div. 538; 228 N. Y. 581; Matter of Boyle v. Walsh, 217 App. Div. 461; Cancemi v. People, 18 N. Y. 128; Maurer v. People, 43 N. Y. 4; Messner v. People, 45 N. Y. 1; People v. Palmer, 43 Hun, 401; Hoyt v. People, 110 U. S. 575; People v. Bush, 68 Cal. 630; Foster v. State, 70 Miss. 763; People v. Cosmo, 205 N. Y. 91.) It was error for the court to refuse to charge the jury that they could bring in a verdict for a lesser degree than that charged in the indictment. (People v. Schleiman, 197 N. Y. 383; People v. Van Norman, 231 N. Y. 454; People v. Koerber, 244 N. Y. 147.)

      Joab H. Banton, District Attorney (Robert C. Taylor of counsel), for respondent.
    Defendant’s claim of intoxication was fully and fairly submitted to the jurors. Their verdict imports that they concluded that defendant was not so intoxicated as to disable his mental faculties. This court will accept then’ finding as concluding that issue. (People v. Mills, 98 N. Y. 176; People v. Fish, 125 N. Y. 136; People v. Leonardi, 143 N. Y. 360; People v. Miles, 143 N. Y. 383; People v. Krist, 168 N. Y. 19; People v. Pekarz, 185 N. Y. 470; People v. Furlong, 187 N. Y. 198.) The court properly refused to submit lesser degrees of homicide to tho jury. (People v. Chapman, 224 N. Y. 463; People v. Schleiman, 197 N. Y. 383; People v. Lingley, 208 N. Y. 597; 207 N. Y. 396; People v. Muehlfeldt, 209 N. Y. 550; People v. Draniewicz, 213 N. Y. 695; People v. Talas, 218 N. Y. 747; People v. Rosenwasser, 233 N. Y. 505; People v. Van Norman, 231 N. Y. 454; People v. Koerber, 244 N. Y. 147; People v. Wagner, 245 N. Y. 143; People v. Moran, 246 N. Y. 100.) A trial court would have inherent power to depart from the strict letter of section 388 of the Code of Criminal Procedure. (People v. Koerner, 154 N. Y. 355.)
   Lehman, J.

The defendant has been indicted and convicted of the crime of murder in the first degree. The indictment charges in common-law form that the defendant and two other men, jointly indicted, but not tried with the defendant, willfully, feloniously and of their malice aforethought ” did assault one James Masterson and inflicted upon him a mortal wound with a pistol held against the said James Masterson, and that the said defendants him, the said James Masterson, in the manner and form and by the means aforesaid, willfully, feloniously and of their malice aforethought did kill and murder.” The evidence produced by the People fully sustains the charge contained in the indictment.

It was shown at the trial by the witnesses, for the People that on the 31st day of January, 1927, James Masterson was shot and killed while visiting premises which were used for the illicit sale of liquor. A number of other persons were present, customers of the place. The defendant Seiler, in conjunction with three other men, at the point of a pistol compelled those who were at that time in the place to go behind the bar. There the defendant took money and jewelry from their persons and took and carried away the contents of a cash register.

Masterson was killed by one of the defendant’s party. The defendant admits that he was present and that he had a pistol in his hand and took money and property from the cash register and from the persons of customers of the place. He asserts that he did not fire the fatal shot or any other shot. Even though there is some testimony produced by the People which may seem to contradict this assertion, the defendant’s story is corroborated upon this point by the great weight of evidence. No conviction of the crime of murder could rest upon a finding that the defendant, in spite of his denial, fired the bullet which inflicted the wound of which Masterson died. That bullet concededly could not possibly have been shot from an automatic pistol, and not only the defendant’s assertion but testimony produced by the People establishes that the defendant held an automatic pistol and that some other member of his party fired the shot which killed Masterson. The defendant’s counsel in his summing up to the jury stressed his claim that the defendant did not actually fire this shot. The prosecuting attorney in his summing up admitted that any claim that the defendant fired this shot would be contrary to the testimony of my witnesses, every one of them almost,” and stated that “ after all, the theory of the prosecution and the law under which we as prosecutors, are proving our case, is in the commission of a felony.” The trial judge correctly charged the jury without exception that if the defendant was engaged in the commission of a robbery, which is a felony, at the time the deceased was shot, it would then be immaterial whether the defendant actually fired the shot that killed Masterson.”

We have repeatedly pointed out that upon an indictment, in common-law form, of murder in the first degree the People may prove the charge by showing that the homicide occurred while the defendant was engaged in the commission of a felony. (People v. Nichols, 230 N. Y. 221.) Indisputably, Masterson was killed while the defendant and his companions were taking, by force, property from the persons of others, while armed with dangerous weapons. The defendant was engaged in the commission of the felony of robbery if he acted voluntarily and with intent to steal the property he was taking. The defendant testified he acted under coercion and fear and not as a free agent. He claims also that before the homicide he drank so much intoxicating liquor that he was unable to form any intent to steal. The trial judge left to the jury the question of whether the defendant committed the felony of robbery voluntarily, without coercion and with specific intent to steal. The jury found against the defendant.

If the defendant was guilty of the felony of robbery, the jury was bound to find him guilty of murder in the first degree. So the statute commands. So the judge has charged. So the jury has found. The State did not seek to fasten penal responsibility of any kind upon the defendant for the homicide of Masterson except upon the theory that the homicide occurred while the defendant was engaged in a robbery. The trial judge charged that the jury must acquit the defendant unless it found that the defendant was so engaged. Counsel for the defendant requested the trial judge to charge the various degrees of homicide. It is said that his refusal of this request is contrary to our recent decision in People v. Koerber (244 N. Y. 147) and constitutes reversible error. We find nothing in that decision which might be regarded as authority for the defendant’s request.

Section 610 of the Penal Law provides that upon the trial of an indictment, the prisoner may be convicted of the crime charged therein, or of a lesser degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a lesser degree of the same crime.” Of course the prisoner may be convicted ” of a crime or an attempt to commit a crime of any degree only where the evidence would justify such conviction. A jury may not convict a person of crime in any degree unless the evidence justifies a finding by the jury that the prisoner has committed those acts which according to statutory definition constitute that crime. Acquittal of the defendant on the charge contained in the indictment cannot furnish basis for conviction of a lesser degree of crime which the evidence does not show the defendant committed. Accordingly this court held in People v. Schleiman (197 N. Y. 383) that where a prisoner has been tried upon the charge of murder in the first degree, perpetrated while he was engaged in the commission of a felony, the court was not required to charge the law applicable to lesser degrees of homicide when the jury could not, upon the evidence submitted, properly find the elements which must be present where guilt of such lesser degrees of homicide exists.

This court at the same time pointed out that where a defendant is tried under any form of indictment upon a charge of murder in the first degree committed from a deliberate and premeditated design to effect death, the general rule is that the court must charge the jury upon the law applicable to other degrees of homicide. This court did not base distinction on technical form of indictment or on other ground than that the court may confine its instruction to the jury to those degrees of the crime charged in the indictment, of which, under the evidence, the jury might find the defendant guilty. However strong the evidence of deliberate and premediated design may be, the jury alone has power to find that fact and may refuse to find it. It may refuse to find even intent to effect death and then there can be a conviction only of manslaughter. In some cases the court may deem refusal by the jury to find a higher degree of crime unreasonable, yet a verdict of guilty of lesser degree is within the power of the jury if based on evidence which establishes at least all the elements of'the crime of lesser degree. The case is logically different where a verdict of guilty of a lesser degree of the crime charged depends not merely upon the failure of the jury to find some element of crime which in the opinion of the court has been clearly proven, but upon an affirmative finding of fact which is not sufficiently supported by the evidence.

In People v. Koerber (supra) a majority of this court found that the evidence presented a situation where the jury might be justified in finding under the evidence that the defendant, tried under a common-law form of indictment upon a charge of murder while engaged in the commission of a felony, was guilty of some degree of murder or manslaughter, though the homicide did not occur while the defendant was committing a felony. We did not modify or limit the rule announced in our earlier decisions. We applied that rule to the particular evidence there placed before the jury. That evidence concededly established that the defendant himself had fired the death-bearing bullets and showed other circumstances which might justify a verdict of guilty of murder in the second degree or of manslaughter.

In the case now under consideration the jury could not properly find that the defendant himself killed Masterson. Unless Masterson was killed during the commission of a felony by the defendant, no evidence here presented would justify an affirmative finding which upon any logical theory would make the defendant share in the guilt of the slayer. The jury may not find the defendant guilty of a crime he did not commit and the court was not required to charge the jury upon degrees of crime, of which the jury would not be justified in finding the defendant guilty under the evidence.

It is said that the result is that the law treats with greater harshness the accessory to the murder than the murderer himself. Doubtless there are cases where a jury, instructed that it has the power to find the defendant guilty of a lesser degree of homicide than charged, will exercise that power, though it would bring in a verdict of guilty as charged if no other alternative were presented. On the other hand, a jury may at times bring in a verdict of not guilty though it is convinced of guilt if it quails before the responsibility of bringing in a verdict which carries with it the penalty of death. Where the evidence proves the defendant guilty of murder in the first degree and the jury believes that evidence, the defendant may be helped or harmed by a charge that the jury has power to convict of a lesser degree of homicide, according to the steadfastness and conscientiousness of the particular jury sitting in that case. If sometimes as a result the guilty escapes or juries mete out unequal justice, it lies with the Legislature to determine whether these considerations should dictate some change in the law. Certainly if the defendant is not guilty of the crime charged he may not be convicted of a lesser degree of crime he did not commit. The courts may not permit the conviction of a defendant of any crime or degree of crime which the jury cannot under the evidence by the exercise of reason find the defendant has committed. Under the evidence here presented if the defendant is guilty of any penal offense he is guilty of the crime of murder in the first degree, and the jury could not find that the evidence established any lesser degree of crime of homicide if he was not a party to the robbery. The charge upon that point was correct.

After counsel for the People had made his opening statement to the jury, the court directed the defendant’s counsel to open his defense in accordance with the provisions of section 388 of the Code of Criminal Procedure, as amended by chapter 417 of the Laws of 1926, and stated that if he did not do so the court would rule that he waived his right to open to the jury. At that time counsel for defendant protested against such ruling. After the People had offered evidence in support of the indictment, the court refused to permit the defendant’s counsel to open on the ground that under the statute he had waived this right. It is said that this ruling constitutes reversible error.

The statute prescribes the order in which the trial should, proceed. Ordinarily it will be followed. We do not construe it as taking from the trial court all power to control the manner in which the trial should proceed and to vary the prescribed order where it appears to the court that variation would facilitate the course of justice in that particular case. Even if we should assume that the trial judge believed that the statute had deprived him of this power, his ruling that the order prescribed by the Legislature should be followed, constitutes no reversible error where it does not appear that any compelling reason exists for variation.

We have examined the other claims of error in the case. We find them without substance and the record discloses no reversible error. The judgment of conviction should be affirmed.

Cardozo, Ch. J., Pound, Crane, Andrews and O’Brien, JJ., concur; Kellogg, J., not sitting.

Judgment affirmed.

(Argued October 12, 1927;

      (Argued October 12, 1927;