Fisher v. State
| Decision Date | 01 June 1961 |
| Docket Number | No. 36252,36252 |
| Citation | 10 N.Y.2d 60,217 N.Y.S.2d 52,176 N.E.2d 72 |
| Parties | , 176 N.E.2d 72 William FISHER, Appellant, v. STATE of New York, Respondent (Claim). |
| Court | New York Court of Appeals Court of Appeals |
William B. Moore, New York City, for appellant.
Louis J. Lefkowitz, Atty. Gen. (Henderson G. Riggs and Paxton Blair, Albany, of counsel), for respondent.
Appellant's claim against the State was, on motion in the Court of Claims, dismissed on the law as not stating a cause of action. The Appellate Division, Third Department, unanimously affirmed without opinion and we granted claimant leave to appeal. The claim alleges that claimant suffered damage when an Assistant District Attorney of New York County tortiously presented false information to a Grand Jury and to a trial jury, resulting in an unlawful conviction which was later set aside in coram nobis proceedings. The State is sued on the theory of respondent superior that is, that the assistant prosecutor was acting as an agent of the State.
Appellant's theory that an Assistant District Attorney is a State officer collides head on with section 2 of the Public Officers Law, Consol.Laws, c. 47, which defines 'state officer' and 'local officer'. 'State officer' in that section is defined by listing all those who are to be so considered and it does not include prosecutors. Then, in the same section, the term 'local officer' is stated to include every other officer elected by the voters of a part of the State, also every officer of a political subdivision or municipal corporation (a county is a municipal corporation, County Law, Consol.Laws, c. 11, § 3) and every officer limited in the execution of his official functions to a part only of the State. To call an Assistant District Attorney a State officer would be impossible under the terms of that statute and appellant so concedes in his brief.
A modern case cited for affirmance is Ritter v. State of New York, 3d Dept., 283 App.Div. 833, 128 N.Y.S.2d 830 where the State was sued because an Assistant District Attorney of New York County had lost a ring which he had in his custody as evidence in a criminal cause. The Ritter opinion cites section 2 of the Public Officers Law (supra) and points out that under section 3 of the County Law a county is municipal corporation, that a District Attorney is elected by the voters of one county only, that his authority is limited to that one county and his salary is paid by the county. As the Appellate Division said in the Ritter case, the District Attorney is in a sense part of the judicial system of the State and prosecutes criminal causes in the name of the People of the Stae but he does not act as a State officer or employee in any such sense as would make the State liable for his wrongdoing.
Until early in the 19th century the prosecution of crime in this State was a duty of the Attorney-General, somewhat like the English system, and at that time the State was divided into districts in each of which there was a prosecutor, hence the name 'District Attorney' (see Report of 1938 Constitutional Convention Committee, Vol. VIII, p. 352). Later, by statute, each county was given an appointed District Attorney . However, all that ended when the 1846 Constitution (see art. X, § 1) directed that the District Attorney should be chosen by the electors of the respective counties. At later constitutional conventions there have been unsuccessful efforts to return to the State-wide system.
For many years there have been statutes making it the duty of the District Attorney to conduct all criminal prosecutions in the county (see present County Law, § 700, and Revised Statutes described in People v. Lytle, 7 App.Div. 553, 40 N.Y.S. 153).
There are some Federal cases (for instance, Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 55 S.Ct. 678, 79 L.Ed. 1322) holding that District Attorneys in New York State are 'state officers' within the meaning of section 266 of...
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