Clark v. Flynn

• Decision Date: 19 November 1959
• Citation: 9 A.D.2d 249,193 N.Y.S.2d 401
• Parties: Application of G. Russell CLARK, as Superintendent of Banks of State of New York, Petitioner, for an Order Pursuant to provisions of Article 78 of Civil Practice Act, v. John L. FLYNN, a Justice of Supreme Court of State of New York, John J. Reynolds, John P. McGrath, Judith Snow and Ellen Schwamm, as Administrators of the Estate of Lillian Ruth Schwamm, Deceased, and of Estate of Harvey L. Schwamm, Deceased, and American Trust Company, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 401

193 N.Y.S.2d 401

9 A.D.2d 249

Application of G. Russell CLARK, as Superintendent of Banks of State of New York, Petitioner, for an Order Pursuant to provisions of Article 78 of Civil Practice Act, v. John L. FLYNN, a Justice of Supreme Court of State of New York, John J. Reynolds, John P. McGrath, Judith Snow and Ellen Schwamm, as Administrators of the Estate of Lillian Ruth Schwamm, Deceased, and of Estate of Harvey L. Schwamm Deceased, and American Trust Company, Respondents.

Supreme Court, Appellate Division, First Department.

Nov. 19, 1959.

Irving Galt and Herbert J. Wallenstein, New York City, of counsel (Louis J. Lefkowitz, Atty. Gen.) for petitioner.

Hays, Sklar & Herzberg, New York City, for respondents Reynolds and McGrath, Ben Herzberg, New York City, and Alvin H. Schulman, New York City, of counsel.

Boris S. Berkovitch, New York City, of counsel, for N. Y. State Banking Dept.

Before BREITEL, J. P., and RABIN, M. M. FRANK, VALENTE and McNALLY, JJ.

VALENTE, Justice.

The Superintendent of Banks of the State of New York applies for an order in the nature of prohibition under Article 78, Civil Practice Act, directed to a Justice of the Supreme Court and to parties in a litigation pending in that Court prohibiting the receipt in evidence upon a trial of that action, of a communication written by the Banking Department on October 19, 1954 to American Trust Company, a defendant therein. Relief in this Court was sought only after the Justice of the Supreme Court, to whom the case had been assigned for trial, had indicated at a preliminary hearing--with commendable frankness in order to enable the parties to seek a solution to their problem rather than deferring a ruling until the document was actually offered at the trial--that he would not exclude and suppress the communication as privileged and confidential but would entertain favorably an application for its admission into evidence.

The Appellate Division may in its discretion restrain the Supreme Court or a lower court which is exceeding its powers in a case over which it has jurisdiction. Culver Contracting Corp. v. Humphrey, 268 N.Y. 26, 39, 196 N.E. 627, 631; Hogan v. Court of General Sessions, 296 N.Y. 1, 68 N.E.2d 849. The remedy, however, is an extraordinary one and will not generally be used when redress can be obtained by some other appropriate means.

We have concluded that an order in the nature of prohibition is the only adequate and effective remedy in the circumstances of this case and that the facts warrant the exercise of our discretion in granting the relief.

The problem before us stems from the provisions of Section 36, subd. 10, of the Banking Law which prescribes that all reports of examinations and investigation of the Banking Department 'shall be confidential communications, shall not be subject to subpoena and shall not be made public unless, in the judgment of the superintendent, the ends of justice and the public advantage will be subserved by the publication thereof'.

There should be no question but that the letter of October 19, 1954 addressed by the Banking Department to the American Trust Company was in the nature of a report of the Department's continuing examination and investigation into the affairs of that bank. The letter refers to an accompanying report and is in the nature of a synopsis of the recommendations flowing from that report. Only a semantic distinction would place the two documents into separate categories. As such, it lay within the discretion of the Superintendent of Banks to determine whether publication of that communication by introduction in evidence or otherwise would subserve the public advantage and the ends of justice. When the attorneys for the plaintiffs, in the action to be tried, applied for authorization to introduce the letter or the contents thereof in the action, the Superintendent refused such permission. That determination was not arbitrary or capricious. ¹ It had a reasonable basis in the concern of the Banking Department in maintaining public confidence in banks and the freedom which the Department should operate in making frank and forceful criticism of the conduct of the affairs of banking institutions. The confidential nature of such criticisms, enjoined by the Legislature in Sec. 36, subd. 10, of the Banking Law, was sustained by the Superintendent in the instant case since public advantage would not be served by their release. There was thus a valid and reasonable claim of privilege.

The statutory privilege of public officials against disclosure of confidential communications, made in the performance of their duties, where the public interest requires that the information should not be divulged, has been sustained by the courts. See United States ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417; Boske v. Comingore, 177 U.S. 459, 20 S.Ct. 701, 44 L.Ed. 846; Matter of Bakers Mut. Ins. Co. (Dept. of Health), 301 N.Y. 21, 27, 92 N.E.2d 49, 52. For a discussion of the problem see 41 Corn.L.Q. 737-749.

Having concluded that a valid claim of statutory privilege was established, there remains only the question of the appropriateness of the remedy. It is urged in opposition to the petition that the American Trust Company, upon whom a subpoena was served could move before the Trial Justice to quash the subpoena and on that application the petitioner could be heard as amicus curiae; or that petitioner could intervene for a limited purpose in the action to move to quash the subpoena or suppress the proffered evidence. It is also suggested that some special proceeding could have been commenced at Special Term for suppression of the evidence. However, the unusual situation presented here is that the Justice who is to try the suit has already made a ruling even though informal in character. Any application to another Justice of the same Court to obtain a contrary determination would be unsuccessful in view of the constraints of comity not to review the conclusions of an Associate Justice of the same Court. See Mount Sinai Hospital, Inc., v. Davis, 8 A.D.2d 361, 188 N.Y.S.2d 298; Steinberg v. Altschuler, 9 A.D.2d 211, 193 N.Y.S.2d 58. As a consequence an appeal to this Court would be inevitable. In view of the fact that a trial was imminent (in fact since the application was made the trial has actually begun), the Superintendent of Banks was left no alternative but to proceed by prohibition.

Ordinarily, a court should not be restrained in making a ruling in a case where there is jurisdiction to rule, even though such ruling might be erroneous. Thus, in granting the writ applied for, we are not prohibiting the Court from making the ruling; for it appears, as we have pointed out earlier, that a ruling has already been made. But believing the conclusion of the Justice to be erroneous, we should give effect to the mandate of Sec. 36, subd. 10, of the Banking Law that a report coming within its provisions 'shall not be made public'. While it might have been desirable for the issue to have been raised in a...