Hyman Goldman Plumbing & Heating Corp. v. Nesbit

Merrell, J. An action was brought by Hyman Goldman Plumbing and Heating Corporation as plaintiff, against one Nesbit and the defendant, appellant, Rosen, in Municipal Court of the City of New York, resulting in a judgment against said defendants and in favor of the plaintiff for $750 and interest. Subsequently judgment was entered against defendants for $862.22, in accordance with a decision of Hon. Thomas E. Murray, a justice of the Municipal Court, before whom the issues in the action were tried without a jury. The defendant, appellant, herein moved to vacate and set aside the judgment on the ground that the judge who presided at the trial was actuated by improper and dishonest motives. In support of the motion of the defendant, appellant, to vacate and set aside the judgment, the defendant, appellant, filed with the Municipal Court his affidavit, verified March 7, 1933. Said affidavit was replete with contemptuous statements attacking the probity and honesty of the judge before whom the action resulting in the judgment against the two defendants was tried. In his affidavit in support of his motion the defendant, appellant, stated that, before the action came to trial, the president of the plaintiff told the defendant, appellant, that he stood very well with ex-Sheriff Culkin, and that he could get the latter to use his influence in the interest of the plaintiff; that, since the case was tried and before the decision and since the decision, the said president of the plaintiff stated to a [313] number of people that ex-Sheriff Culkin fixed it up for him; that he sent a letter to the judge, and that the decision would be for plaintiff. In his affidavit the appellant further states that he is mindful that matters of that sort cast an aspersion on the court and its decision and judgment, and that even if it were not true that ex-Sheriff Culkin had exercised any influence with the court, enough of an aspersion had been cast upon the judgment that the same should be set aside and the case retried. The defendant, appellant, further stated in said affidavit that the president of the plaintiff knew ex-Sheriff Culkin, and that the plaintiff had done work for the ex-sheriff, and that plaintiff’s president told defendant, appellant, that he was going to get the ex-sheriff to fix the case for him; that a number of other incidents led deponent to believe that a letter was actually sent by ex-Sheriff Culkin to the judge; that there were incidents in the chain of circumstances lending a suspicion and “ adding foundation to the belief that improper influence was exerted upon the court in securing the judgment in favor of the plaintiff.” Throughout the said affidavit the appellant accuses Judge Murray, who presided at the trial, with favoritism for plaintiff, and that circumstances indicated that the case was fixed up for plaintiff. The appellant further stated in his affidavit: “ The general demeanor of the Trial judge was such that nothing that the defendants said mattered.” The affidavit thus submitted on the application of the defendant, appellant, to set the judgment aside and for a new trial was replete with insolent and contemptuous accusations about the judge presiding at the trial. After the affidavit was filed, on the motion of the appellant to vacate the judgment and to order a new trial, the court summoned the defendant, appellant, to show cause why he should not be deemed in contempt of court. The proceeding was heard before Justice Murray in Municipal Court, and defendant was adjudged guilty of criminal contempt, and a jail sentence of thirty days and a fine of $250 were imposed. The order holding the defendant in contempt of court was unanimously affirmed by the Appellate Term. Leave to appeal from the determination of the Appellate Term to this court was thereafter granted. The defendant, appellant, seeks to escape punishment for his contemptuous conduct committed in the presence of the court upon various technical grounds. In the contempt proceeding the defendant, appellant, objected to Judge Murray, against whom the contemptuous statements in his affidavit were directed, presiding at his trial for contempt. Objections were also raised that the order to show cause was not made returnable at a term of the Municipal Court, and that Judge Murray was not appointed to hold the term of Municipal Court at which the defendant was found guilty of [314] contempt. We think there is actually no merit whatever in the technical objections urged by the defendant, appellant. It is true that the order to show cause why the defendant should not be punished for contempt, granted by Justice Murray, was made returnable “ before me,” but it was, nevertheless, made returnable “ in the Municipal Court of the City of New York, Borough of Manhattan, Third District, Part I thereof,” as stated in the order to show cause. As to the objections of the defendant to being tried by a presiding judge against whom the defendant’s contemptuous statements were directed, they constituted no disqualification on the part of the justice presiding. The contempt proceedings were properly tried before the justice who had been assailed. The technical objection is urged by the appellant that Justice Murray was assigned to a different part of the Municipal Court from that at which he was tried. We know of no reason why a judge of the Municipal Court may not hold court outside his- regular assignments. Had the contempt proceedings against the defendant, appellant, been presented to any other Municipal Court judge, the same would have promptly been sent to Justice Murray’s part for trial. We have presented, upon this appeal, most contemptuous statements of a party to litigation, attacking the honesty and judicial character of a justice presiding at a trial who rendered a decision adverse to the claims of the defendant, appellant. Justice Murray, now deceased, through a long judicial career, was a judge of recognized ability and unimpeachable character. Without the slightest justification in fact the defendant, appellant, stung by an adverse decision, saw fit to visit upon a judge of the highest character, accusations, of dishonorable and unjudicial conduct and of being actuated by favoritism and improper considerations. The contemptuous attack of the defendant, appellant, certainly interfered with the administration of justice and tended to bring contempt upon the court. It is just such conduct of the defendant as tends to bring contempt upon our courts. The defendant may not escape bis just deserts by urging technical objections to a procedure resulting in the order against him. No court to which the facts were presented could have found otherwise than that the defendant, appellant, was guilty of criminal contempt. The very grounds upon which the appellant asks a reversal of the order appealed from were before this court on a prior appeal by the appellant, Rosen, from an order denying his motion for a prohibition order against Justice Murray of the Municipal Court. (Matter of Rosen, 240 App. Div. 955.) Among other grounds on the application for a prohibition order, the appellant, Rosen, set forth the same grounds upon which he now asks a reversal of the order appealed [315] from, namely, that the contempt proceedings instituted by Justice Murray were unlawful, and that the judge was without jurisdiction to institute said proceedings for the reason that no summary action “was taken by Justice Murray upon the commission of the contempt, and, further, that the order to show cause instituting the contempt proceedings was not in conformity with the provisions of section 755 of the Judiciary Law governing summary punishment for contempt of court, and that the order to show cause was not predicated upon an accusation supported by an affidavit in conformity with the provisions of section 757 of the Judiciary Law, and that the order to show cause, being a judge’s order returnable before Justice Murray, was not authorized in a proceeding to punish for contempt- of court. The order to show cause, assailed by the appellant in the prohibition proceedings, was the same as that which he now attacks by this appeal. In the application for a prohibition order the appellant urged that the order to show cause was a judge’s order, and, having been made returnable before himself, the proceeding was “ arbitrary, without warrant in law and without jurisdiction.” In a supplemental affidavit in support of his application for the prohibition order, the appellant, by way of argument, stated: "As a further objection to the jurisdiction of Judge Murray to proceed against the deponent to punish him for criminal contempt, it is submitted that Judge Murray is without jurisdiction to hold Court in Part II of the Municipal Court of the City of New York, Borough of Manhattan, Third District, on the 23rd day of June, 1933, by reason of the fact that he does not hold a legal assignment to hold Court in said District and in said Part. Judge Murray is under an assignment to sit in Central Jury Court, Part XIII, from June 5th to July 1st, 1933, where he is authorized to try jury causes.” Upon the appeal from the order denying his motion for a prohibition order and to prohibit Justice Murray from proceeding to punish him for alleged criminal contempt of court, the appellant contended: 1. That Judge Murray is without jurisdiction to inquire as to the alleged misconduct under the order to show cause by which it was initiated, because (a) Such a proceeding can only be initiated by a court order as distinguished from a judge’s order. (b) Only a court has a right to punish for criminal contempt of court acts defined by statute (Judiciary Law, § 750) as constituting criminal contempt. 4. Judge Murray is disqualified to conduct the hearing in contempt proceedings against the accused by reason of bias, prejudice, hatred as well as personal interest. [316] 5. Prohibition will he to enjoin a court or other tribunal from proceeding without jurisdiction or in excess of jurisdiction. This court, upon appeal, unanimously affirmed the order denying the appellant’s motion for a writ of prohibition (240 App. Div. 955), and thereby definitely disposed of the very question now raised as to Judge Murray’s right and jurisdiction in the matter. Certainly, the appellant properly raised the question of Judge Murray’s jurisdiction by the motion for a prohibition order. The contentions of the appellant were denied at Special Term, and the denial thereof was unanimously affirmed by this court. It, therefore, appears that all the questions presented by the appellant herein have been decided adversely to him by a unanimous appellate court. The appellant is, therefore, estopped from again raising the same questions, by reason of such prior adjudication. The determination of the Appellate Term, affirming the order adjudging the defendant in contempt, should be affirmed, with twenty dollars costs and disbursements against the defendant, appellant, and the defendant, appellant, should serve the jail term and pay the fine imposed by the order. Martin, P. J., and Townley, J., concur; O’Malley and Untermyer, JJ., dissent and vote for reversal.