Astruc v. Star Co.

• Decision Date: 28 November 1910
• Citation: 182 F. 705
• Parties: ASTRUC v. STAR CO.
• Court: U.S. District Court — Southern District of New York

182 F. 705

ASTRUC v. STAR CO.

United States Circuit Court, S.D. New York.

November 28, 1910

Maurice Leon, for plaintiff.

Macdonald De Witt and M. Towne, for defendant.

RAY District Judge.

It seems to me, so far as requests to charge are concerned, that what was said by Earl, J., in O'Neil v. D.D.E.B. &amp B.R.R. Co. et al., 129 N.Y., at pages 130, 131, 29 N.E at page 85 (26 Am.St.Rep. 512), disposes of this case if it is good law and common sense. The court there said, among other pertinent things:

'The counsel of a party cannot ask as a right unreasonably to prolong a trial, by the examination of witnesses, or by debates to the court or jury, or by innumerable and interminable requests to charge. In these matters, the judge has some discretion to be exercised in the interest of justice and with a due regard to the rights and interests of the parties. A party has the right to a reasonable opportunity to present his evidence, objections, and requests, and after he has had that he cannot complain of reasonable restrictions and limitations put upon the exercise of his right by the judge in the fair use of the discretion which he undoubtedly possesses.'

In Blashfield, Instruction to Juries, it is said (section 134, pp. 330, 331):

'Where the refusal to give an instruction because not presented in time would work injustice, the court should either waive its rule, and give the instruction, or make such explanations of its own as would put the law correctly before the jury. But where a full and fair opportunity has been afforded to counsel to submit their requests for instructions, a very clear case of abuse of discretion must be made out to call for any interference with the refusal of the trial judge to receive other requests, the presentation of which has been unnecessarily delayed.'

And to the same effect is Schuhle v. Cunningham, 14 Daly (N.Y.) 404; Williams v. Com., 85 Va. 607, 8 S.E. 470; Tully v. Despard, 31 W.Va. 370, 6 S.E. 927. These cases are not substantially in conflict with what was held in Chapman v. McCormick, 86 N.Y. 479, where the court refused to entertain any requests after the main charge was delivered, which is not this case.

This case is similar to Gallagher v. McMullin, 7 A.D. 321, 324, 325, 40 N.Y.Supp. 222, and unlike Malone v. Third Av. R.R., 12 A.D. 508, 42 N.Y.Supp. 694, and Douglas v. Met. St. R. Co., 119 A.D. 203, 205, 104 N.Y.Supp. 452.

First, in the case at bar, counsel were requested to hand up their requests to charge to enable the court to go over them, or the propositions embraced therein, in the main charge, or cover them thereby and save time and confusion. The defendant handed up its requests to charge, but the plaintiff did not. However, the court listened to and passed upon many requests, about 17 or 18 in number, made orally by plaintiff's counsel after the main charge had been completed. The court then passed upon 3 or 4 requests from plaintiff's counsel after he stated he had but one more. Then plaintiff's counsel turned away, walked to his table, where he had books and papers, and, to the court, seemed to be picking them up. The clerk was then instructed by the court to swear an officer to accompany the jury, which the clerk did, without objection or suggestion that the plaintiff had more requests to submit. In the meantime the court had turned to other business with counsel in other cases or another case, not on the calendar, and the jurymen were picking up their hats, and some were out of the box, when plaintiff's counsel approached and stated that he desired to submit another request to charge. The court stated it was then too late. What that request was to have been is not set forth in the motion papers but appears in reply affidavits.

In the trial of causes there must come a time when the court is not called upon to listen to and pass upon further requests to charge, and, in this case, after the counsel had said he had 'one more' and then submitted three or four, all of which were passed upon, and had then turned away and returned to his table, where he remained with his back to the court while without objection an officer was sworn to accompany the jury to its room, and after the jury had in part left the box for the purpose of retiring and the court had taken up other business, it seemed to the court that a fair judicial discretion was exercised in declining to entertain further requests and further instruct the jury. There was no suggestion of inadvertence, mistake, error of counsel, or of forgetfulness. This court entertains the same opinion now after an examination of the cases. Clearly the affidavits of Mr. Shearn, Mr. Towne, and the deputy clerks dispose of these matters and of the other questions presented by the moving affidavits.

The jury was plainly told that it was for them to say whether the published article alleged to be libelous, so far as it referred to ...