Anonymous v. Arkwright

• Decision Date: 27 January 1958
• Parties: Matter of the Application of S. ANONYMOUS, Petitioner, v. Honorable George A. ARKWRIGHT, Justice of the Supreme Court of the State of New York, Respondent, to review a determination and order of the respondent adjudging petitioner guilty of a criminal contempt of court.
• Court: New York Supreme Court — Appellate Division

Page 538

170 N.Y.S.2d 538

5 A.D.2d 792

Matter of the Application of S. ANONYMOUS, Petitioner, v. Honorable George A. ARKWRIGHT, Justice of the Supreme Court

of the State of New York, Respondent, to review a

determination and order of the respondent adjudging

petitioner guilty of a criminal contempt of court.

Supreme Court, Appellate Division, Second Department.

Jan. 27, 1958.

Edward J. McCann, Brooklyn, for petitioner.

Denis M. Hurley, Brooklyn, for respondent.

Before WENZEL, Acting P. J., and BELDOCK, MURPHY, UGHETTA, and KLEINFELD, JJ.

MEMORANDUM BY THE COURT.

By an order of this court dated January 21, 1957, as amended by a subsequent order dated February 11, 1957, a judicial inquiry and investigation was directed with respect to the improper practices and abuses by attorneys in Kings County and by persons acting in concert with them, as alleged in the petition of the Brooklyn Bar Association. In part, the order directed inquiry with respect to practices 'involving professional misconduct, fraud, deceit, corruption, crime and misdemeanor, by attorneys and by others acting in concert with them' and with 'respect to any and all conduct prejudicial to the administration of justice by attorneys and others acting in concert with them'. The order appointed an additional Special Term of the Supreme Court to conduct the inquiry and investigation and provided that the inquiry and investigation shall be conducted by a named Justice of the Supreme Court, 'with full power to compel the attendance of witnesses, their testimony under oath and the production of all relevant books, papers and records'. An attorney nominated by the Brooklyn Bar Association was designated to aid the said Justice in the conduct of the inquiry and in the prosecution of said investigation. The order also provided that 'for the purpose of protecting the reputation of innocent persons, the said inquiry and investigation shall be conducted in private, pursuant to the provisions of the Judiciary Law (Section 90, subdivision 10); that all the facts, testimony and information adduced, and all papers relating to this inquiry and investigation, except this order, shall be sealed and be deemed confidential; and that none of such facts, testimony and information and none of the papers and proceedings herein, except this order, shall be made public or otherwise divulged until the further order of this court' and 'that upon the conclusion of said inquiry and investigation the said Justice shall make and file with this court his report setting forth his proceedings, his findings and his recommendations.'

Pursuant to subpoena and subpoena duces tecum, petitioner, a physician, attended at the additional Special Term, was sworn and refused to answer questions. By this proceeding pursuant to article 78 of the Civil Practice Act, petitioner seeks to review the order of the additional Special Term adjudging him guilty of contempt and fining him $250. No issue is raised as to whether the review of the contempt order by an article 78 proceeding is proper.

Determination annulled, without costs.

During the questioning of petitioner his attorney was excluded from the room. Petitioner read into the record a statement prepared by his attorney in which he asserted his claim that the order of the Appellate Division was invalid and the additional Special Term had no power to inquire into his acts as he was not an attorney. Therein he also asserted his privileges as a citizen under the New York State Constitution (art. I, §§ 1, 6, 12) and under the United States Constitution (4th, 5th and 14th Amdts.), his rights and privileges under the common and statutory law of the State of New York and the United States, his privileges as a physician, and the alleged violation of his right to be represented by counsel during the inquiry.

It was within the power and jurisdiction of this court to make the order directing the inquiry and investigation (N.Y.Const., art. VI, § 2; Judiciary Law, §§ 86, 90; Matter of Association of Bar of City of New York, 222 App.Div. 580, 227 N.Y.S. 1; Matter of Brooklyn Bar Ass'n, 223 App.Div. 149, 227 N.Y.S. 666; People ex rel. Karlin v. Culkin, 248 N.Y. 465, 162 N.E. 487, 60 A.L.R. 851), and petitioner was required to answer...