Brennan v. Monaghan
| Decision Date | 28 August 1957 |
| Citation | 166 N.Y.S.2d 190,8 Misc.2d 189 |
| Parties | Owen Bernard BRENNAN, Petitioner, v. George P. MONAGHAN, as Commissioner of State Harness Racing Commission, a Division of the Department of the State of the State of New York, Respondent, for an order under Article 78 of the Civil Practice Act reviewing the determination made by said respondent. |
| Court | New York Supreme Court |
Raphael, Searles, Levin & Vischi, New York City ( Sidney O. Raphael, William Levin, New York City, Thomas J. Burns, Brooklyn, of counsel), for petitioner.
Jacob K. Javits, Atty. Gen. of State of New York (Samuel A. Hirshowitz, Asst. Atty. Gen. of State of New York, of counsel), for respondent.
The petitioner, a resident of Michigan, is an owner of harness racing horses and has been engaged, among other endeavors, in that sport and business in a number of states. On August 31, 1954, he filed an application with the respondent for an owner's license in this state. The governing legislation is popularly known as the Pari-Mutuel Revenue Law (McK.Unconsol.Laws, §§ 7561-7614, inclusive). The statute established a State Harness Racing Commission, as a division of the Department of State. The commission was granted '* * * general jurisdiction over all pari-mutuel harness racing activities in the state and the corporations, associations, or persons engaged therein.' The statute provides that, '[f]or the purpose of maintaining a proper control over harness race meetings conducted pursuant to this act, the state harness racing commission may license drivers and such other persons participating in harness horse race meets, as the commission may by rule prescribe, including, if the commission deem it necessary so to so, owners * * *' (McK.Unconsol.Laws, § 7599-a(1)). The statutory standards for licensing a participant at harness race meetings are found in subdivision 2 of section 7599-a, as follows:
'2. If the state harness racing commission shall find that the experience, character and general fitness of the applicant are such that the participation of such person in harness horse race meets will be consistent with the public interest, convenience and necessity and with the best interests of racing generally in conformity with the purposes of this act, it may thereupon grant a license.
'Without limiting the generality of the foregoing, the commission may refuse to issue a license, pursuant to this section, if it shall find that the applicant (a) has been convicted of a crime involving moral turpitude; * * *'.
On February 2, 1955, the petitioner received notice from the respondent denying his application for the license, and specifying the grounds of denial as the petitioner's convictions of two crimes involving moral turpitude, and that the petitioner's experience, character and general fitness rendered his participation inconsistent with the public interest in harness racing. The petitioner was entitled to a hearing 1 before the respondent, on the denial of his application for a license, upon demand therefor within ten days after notice of such denial. The applicable provisions of the statute are contained in Section 7605 as follows: 'If the state harness racing commission shall refuse to grant a license applied for under this act, * * * the applicant * * * may demand, within ten days after notice of the said act of the commission, a hearing before the commission and the commission shall give prompt notice of a time and place for such hearing at which the commission will hear such applicant * * * in reference thereto.' On February 8, 1955, the petitioner duly made demand for such a hearing. The statute provides that (McK.Unconsol.Laws, § 7605).
Admitting that he had been convicted in 1942 of a violation of the Federal Anti-Trust Law and in 1949 of a violation of the Michigan State Labor Act, the petitioner claimed that with regard to the anti-trust conviction he had pleaded nolo contendere and had been fined $1,000, that with regard to the labor law conviction he had pleaded guilty to a misdemeanor and had received a suspended sentence, that both convictions arose from technical violations resulting from certain trade union organizational activities in which he was engaged, and that, in any case, they did not involve moral turpitude. In support of the case which he expected to present at the hearing before the respondent, the petitioner stated that he desired to submit the testimony of a judge, several prosecuting attorneys, and an executive of a leading automobile manufacturer, all residents of Michigan; and the petitioner requested the respondent to issue a commission upon oral or written interrogatories in order to obtain their depositions in that state. The respondent denied the petitioner's request to effectuate the taking of the depositions of the nonresident witnesses out of this state. The petitioner then applied to the court for an order directing the respondent accordingly. This application was denied at Special Term on the ground that there was no power to direct the issuance of interrogatories, but the court stated that, if a license were denied the petitioner by the respondent upon the conclusion of the hearing, then 'a [judicial] review can be had in which the question can be determined whether the refusal to provide for the taking of the testimony in question was proper.' Steuer, J., N.Y.L.J., June 14, 1955.
Averring that 'it became apparent to petitioner that without such an order for written interrogatories, the obtaining of all the necessary testimony in support of petitioner's contentions would be extremely difficult if not practically impossible', and that 'petitioner came to the conclusion to withdraw all the papers and proceedings theretofore initiated by him before the respondent commission,' the petitioner by telegram to the respondent, dated November 9, 1955, requested a withdrawal of his application and all petitions subsequently filed before the commission. By letter dated the same day, his attorneys requested a withdrawal of . On November 10, 1955, at the continued hearing before the respondent, counsel for the petitioner orally 'move[d] to withdraw any and all proceedings of any kind and nature now pending before this Commission * * *', stating that in substance his motion was in conformity with the letter. The respondent thereupon stated: 'Your motion to withdraw the appeal [hearing?] is granted and I will take under consideration that part of your application for permission to withdraw the original application for a license'.
Thereafter, and on December 8, 1955, there appeared on the front page of the New York Law Journal an opinion of the Appellate Division, First Department, which in effect held that an open commission under the Civil Practice Act may be issued to take testimony of a witness out of the state for use in a proceeding pending before an administrative body (Corporation Counsel of the City of New York v. Smith, 286 App.Div. 561, 145 N.Y.S.2d 563). On January 7, 1956, the petitioner's attorneys wrote the respondent '* * * requesting the reopening of these proceedings and a fixing of a date when we can resume hearings * * *', and, referring to the Appellate Division decision, asked that 'we be allowed to have the benefit of the depositions of * * * the witnesses on behalf of Mr. Brennan [the petitioner] and whose presence in New York might not be possible because of their being non-residents of the state.' On January 19, 1956, the respondent wrote the petitioner's attorneys that he 'denies your request to reopen the appeal [sic] voluntarily discontinued by your client from the decision denying his application for a license.' Hence the institution, on May 10, 1956, of the instant proceeding under Article 78 of the Civil Practice Act, which eventually was submitted to me for disposition.
The petitioner argues that he has been innocent of any wrongdoing; that, in his application to withdraw, it was plain that he intended, and expressly moved, to withdraw the entire proceeding, including the application for a license, and that the respondent could not validly divide the motion into parts--resulting in a discontinuance of the hearing demanded in consequence of the denial of the license applied for, and at the same time deny the withdrawal of the initial application for a license, thus permitting to remain in full force the respondent's denial of the petitioner's application for the license; that the respondent's refusal to grant a license to the petitioner has been the subject of notification to other states where the petitioner has an active interest in harness racing and that his status there has thereby been adversely affected; and that, if the hearing is reopened, the petitioner can now...
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