Borden v. Tobias

• Decision Date: 16 April 1964
• Citation: 42 Misc.2d 1069,249 N.Y.S.2d 891
• Parties: Application of Leon E. BORDEN, Petitioner, v. Meyer TOBIAS, as Justice of the Civil Court of the City of New York, County of Queens and the Civil Court of the City of New York, County of Queens, Respondents, to review and annul pursuant to Article 78 of the Civil Practice Law and Rules the adjudication, arrest and imprisonment, without warrant of commitment on February 11th, 1964 adjudicating the Petitioner in Criminal Contempt of Court and punishing him therefor.
• Court: New York Supreme Court

Page 891

249 N.Y.S.2d 891

42 Misc.2d 1069

Application of Leon E. BORDEN, Petitioner, v. Meyer TOBIAS, as Justice of the Civil Court of the City of

New York, County of Queens and the Civil Court of the City

of New York, County of Queens, Respondents, to review and

annul pursuant to Article 78 of the Civil Practice Law and

Rules the adjudication, arrest and imprisonment, without

warrant of commitment on February 11th, 1964 adjudicating

the Petitioner in Criminal Contempt of Court and punishing

him therefor.

Supreme Court, Special Term, Queens County, Part I.

April 16, 1964.

Austin & DuPont, Jamaica, for petitioner.

Louis J. Lefkowitz, Atty. Gen., New York City, for respondents.

NICHOLAS M. PETTE, Justice.

Pursuant to Article 78 of the Civil Practice Law and Rules, petitioner brings this proceeding for an order annulling the 'adjudication for criminal contempt' of petitioner, made by respondent, a Justice of the Civil Court of the City of New York, and to set aside and vacate the fine imposed thereunder.

No written mandate or order adjudging petitioner guilty of a contempt has been entered. Respondent seeks the dismissal of the petition on the ground that, in effect, there is nothing for this court to review pursuant to the provisions of Article 78 of the CPLR .

From the transcript of the minutes of the proceedings herein involved, which respondent has made a part of the record before this court, it appears that on February 11, 1964, in Civil Court, Queens County, Small Claims Part, petitioner appeared before respondent, then presiding, as counsel for defendant in an action brought for breach of contract and in the course of cross-examining the plaintiff--who was unrepresented by counsel--the petitioner asked the respondent to disqualify himself and that the following colloquy ensued (Resp. Exh. 'A', pp. 14-16):

'THE COURT: Let us stop wasting time. I am trying a case. Let us proceed. That is like the same story that you told me on Monday when you wanted an adjournment.

'MR. BORDEN: Sir----

'THE COURT: Let us proceed.

'MR. BORDEN: Your Honor, the remark made----

'THE COURT: Let us proceed.

'MR BORDEN: At this point, I am asking your Honor to disqualify yourself and I would like it to be stated on the record why.

'THE COURT: Let us proceed with this case. You are now directed to proceed. I want no further words from you about it.

'MR. BORDEN: I must make a statement for the record.

'THE COURT: Did you hear what I just said to you.

'MR. BORDEN: I would like to make a statement for the record.

'THE COURT: You are going to proceed with the trial of this case.

'MR. BORDEN: The remark made by the Court----

'THE COURT: Let us not have another word of that. You are now being punished for contempt of Court, and you will show cause why you should not be at 10:00 o'clock A.M., Part III, in this building.

'MR. BORDEN: I will be very, very happy to. If you think I was disrespectful to this Court, I will take my punishment.

'THE COURT: Counsel, I am asking you to keep quiet and proceed with the trial of this case.

'MR. BORDEN: Part of the trial of the case is that your Honor disqualifies himself.

'THE COURT: I will now punish you. You will take him into imprisonment. Fifty Dollars fine to be paid and two days. Let him get another attorney here.

'MR BORDEN: I will try it, for I have asked your Honor to disqualify himself.

'THE COURT: I am not going to say another word. Take him into custody. He is punished for contempt.

'MR. BORDEN: I would like to complete the case. I will continue the case, if your Honor denies my motion.

'THE COURT: One more word and we will stretch the term that you will have to stay.'

It appears that the foregoing took place about 8:45 P.M. and that petitioner left the courtroom in the custody of the Court Officer (id. pp. 17-18); also that shortly thereafter he reappeared before respondent who then stated that:

'THE COURT: The record will indicate that in view of the hour that is involved here and in view of the fact that the Clerk's Office is closed, it is not possible for the Court, at this particular moment, to obtain a proper order of commitment, the Court reduces the time to be served by the attorney to the time already held in custody.

'He is now discharged insofar as the time to be served.' (Id., pp. 18, 19.)

Insofar as pertinent here, section 750 of the Judiciary Law provides:

'A. A court of record has power to punish for a criminal contempt, a person guilty of any of the following acts, and no others:

'1. Disorderly, contemptuous, or insolent behavior, committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority.'

Section 752 of the Judiciary Law, as amended by the Laws of 1962, effective September 1, 1963, states:

'[a] mandate, punishing a person summarily for a contempt committed in the immediate view and presence of the court, is reviewable by a proceeding under article seventy-eight of the civil practice law and rules'. (Emphasis supplied.)

However, in the case at bar there is no such mandate which the court may review before it. The rule strictissimi juris controls in matters involving criminal contempts. (In re Young, 29 Misc.2d 817, 211 N.Y.S.2d 621.)

From the foregoing, it is manifest that a contempt committed in the immediate view and presence of the court is made formal by a written mandate and, as prescribed by the Judiciary Law, § 752, it is the mandate that is reviewable in an Article 78 proceeding. Consequently, unless a mandate is entered, an oral order of the court is no more reviewable under Article 78 than a jury verdict would be appealable in the absence of the entry of a judgment. (People ex rel. Clarke v. Truesdell, Sup., 79 N.Y.S.2d 413, 415-416, n. o. r. [Sup.Ct. Orange Co.].)

In the Clarke case, supra, the court stated:

'The legality of the detention (for a summary contempt) must stand or fall upon the sufficiency of the Mandates of Commitment.

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'In a summary criminal contempt proceeding, the knowledge of the Justice before whom the contempt occurred, takes the place of proof. His recital of the particular...