278 N.Y. 15, Green v. State

Citation:278 N.Y. 15
Party Name:Green v. State
Case Date:April 13, 1938
Court:New York Court of Appeals
 
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278 N.Y. 15

HERBERT GREEN, Appellant,

v.

STATE OF NEW YORK, Respondent. (Claim No. 23893.)

New York Court of Appeal

April 13, 1938

Submitted March 16, 1938.

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COUNSEL

Julius Applebaum and John F. Tomaney for appellant. The claim was properly filed and prosecuted under the Court of Claims Act (L. 1920, ch. 922, as amd. L. 1929, ch. 467; L. 1936, ch. 775). (Jackson v. State, 261 N.Y. 134; Saxe v. Peck, 139 A.D. 419.) Section 510 of the Penal Law does not expressly suspend claimant's right during the term of sentence to prosecute for the tort to his person committed after such sentence and during confinement. (Avery v. Everett, 110 N.Y. 317; Bowles v. Habermann, 95 N.Y. 246; Troup v. Wood, 4 Johns. Ch. 228; Platner v. Sherwood, 6 Johns. Ch. 118; Davis v. Duffi, 8 Bosw. 617; 3 Keyes, 606; Bonnell v. R., W. & O. R. R. Co., 12 Hun, 218.) Section 510 does not expressly or necessarily include 'civil rights' acquired after the imposition of the sentence. (Matter of Wendell v. Lavin, 246 N.Y. 115.) The judgment of the Appellate Division is erroneous. (Bhullar v. State, 248 A.D. 820.)

John J. Bennett, Jr., Attorney-General (Joseph I. Butler and Leon M. Layden of counsel), for respondent. The claimant is precluded by section 510 of the Penal Law from prosecuting this claim. (Bowles v. Habermann, 95 N.Y. 246;

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State v. Powers, 51 N. J. L. 432; Murphy v. Barron, 205 S.W. 49; Avery v. Everett, 110 N.Y. 317; Stephani v. Lent, 30 Misc. 346; Davis v. Duffie, 8 Bosw. 617.)

O'BRIEN, J.

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. 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 A.D. 108.)

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 of 1920, ch. 922, as amd. L. 1929, ch. 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). In that case, a special statute (Laws of 1933, ch. 547) conferred jurisdiction upon the Court of Claims to hear...

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