Green v. State
| Decision Date | 13 April 1938 |
| Citation | 278 N.Y. 15,14 N.E.2d 833 |
| Parties | GREEN v. STATE. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Proceeding in the matter of the claim of Herbert Green against the State of New York. From a judgment entered May 19, 1937, on an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, 251 App.Div. 108, 295 N.Y.S. 672, which reversed a judgment of the Court of Claims, 160 Misc. 398.290 N.Y.S. 36, in favor of claimant and directed the dismissal of the claim without prejudice to a renewed prosecution thereof after termination of the present imprisonment of the claimant, the claimant appeals.
Affirmed. Appeal from Supreme Court, Appellate Division, Fourth department.
John F. Tomaney, of Syracuse, and Julius Applebaum, of New York City, for appellant.
John J. Bennett, Jr., Atty. Gen. (Leon M. Layden and Joseph I. Butler, both of Albany, of counsel), for respondent.
Appellant, while an inmate of Auburn Prison, was injured in the operation of a weaving machine. The Court of Claims found the facts to be that the agents of the state were guilty of negligence, that claimant was free from negligence, and concluded as matter of law that his right to file his claim and have it heard and determined is not suspended by section 510 of the Penal Law, Consol. Laws, c. 40. An award of $2,500 was made which has been reversed by the Appellate Division, and the claim dismissed without prejudice to prosecution of the claim after the present imprisonment has been terminated. 251 App.Div. 108, 295 N.Y.S. 672.
The question here is whether section 510 of the Penal Law suspends claimant's right to sue under section 12-a of the Court of Claims Act, Laws 1920, c. 922, as amended Laws 1929, c. 467, during the term of his sentence. The Appellate Division has gone no further than to hold that his right is merely suspended. After disability caused by imprisonment has ceased, the right may be exercised. This judgment of the Appellate Division is not in conflict with our recent decision in Cullen v. State of New York, 277 N.Y. 541, 13 N.E.2d 465. In that case, a special statute, Laws 1933, c. 547, conferred jurisdiction upon the Court of Claims to hear and determine the claim. In Bhullar v. State of New York, 248 App.Div. 802, 289 N.Y.S. 41, jurisdiction to hear and determine was also conferred by a special statute, Laws 1935, c. 961. Appellant does not cite any decision whereby, without the assistance of a special statute, one serving a term for felony has obtained, during the term of his sentence, an award under section 12-a of the Court of Claims Act. While the decisions in Bowles v. Habermann, 95 N.Y. 246, 250, and Avery v. Everett, 110 N.Y. 317, 332, 333,18 N.E. 148, 1 L.R.A. 264, 6 Am.St.Rep. 368, are not controlling for the reason that the facts are different, the reasons stated in the opinions are impressive as tending to support the present judgment of the Appellate Division. In the Bowles Case a motion was made in this court to suspend proceedings on appeal in an action wherein one of the parties had been convicted of a felony after the appeal had been taken. He was sentenced not to a state prison, but to a penitentiary, and the motion was denied. The section of the Penal Code then under consideration was section 707, and was the same as the present section 510 of the Penal Law. Each provides: ‘A sentence of imprisonment in a state prison for any term less than for life, forfeits all the public offices, and suspends, during the term of the sentence, all the civil rights, and all private trusts, authority, or powers of, or held by, the person sentenced.’ At page 250 of 95 N.Y., Judge Earl observed: ‘So, although it may be sound law, under the decisions referred to, that one sentenced for a felony cannot commence an action to enforce or protect his rights, yet, if another commences suit against him, he must have a right to defend himself.’ The prior decisions to which the judge referred are Davis v....
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