Friedman v. State, 44913

• Decision Date: 23 April 1969
• Docket Number: No. 44913,44913
• Parties: , 249 N.E.2d 369 Louis L. FRIEDMAN, Respondent, v. STATE of New York, Appellant. Claim
• Court: New York Court of Appeals Court of Appeals

Page 484

301 N.Y.S.2d 484

24 N.Y.2d 528, 249 N.E.2d 369

Louis L. FRIEDMAN, Respondent, v. STATE of New York, Appellant.

Claim No. 44913.

Court of Appeals of New York.

April 23, 1969.

Louis J. Lefkowitz, Atty. Gen. (Jeremiah Jochnowitz and Ruth Kessler Toch, Albany, of counsel), for appellant.

John T. DeGraff, Albany, Theodore Kiendl, Richard E. Nolan and James W. B. Benkard, New York City, for respondent.

SCILEPPI, Judge.

In 1956 claimant, Louis Friedman, was elected to the office of Supreme Court Justice for a term expiring on December 31, 1970. On July 2, 1962 the Presiding Justice of the Appellate Division, Second Department pursuant to the State Constitution (art. VI, § 9--a (now § 22)), requested the then Chief Judge of the Court of Appeals to convene the Court on the Judiciary to consider matters involving the conduct of the claimant disclosed in a report of a Justice of the Supreme Court filed in the Appellate Division, Second Department, in a disciplinary proceeding entitled Matter of M. Malcolm Friedman (see 17 A.D.2d 644) brought against claimant's brother.

On August 15, 1962 the Court on the Judiciary ¹ determined preliminarily that sufficient cause existed for preferring charges and accordingly, based on the conduct disclosed in the above-mentioned report, the following charges were served on August 16, 1962: 'That Louis L. Friedman has abused his public office as a Justice of the Supreme Court of the State of New York, Second Judicial District (1) by interfering with and obstructing a Judicial Inquiry and Investigation ordered by the Appellate Division of the Supreme Court of the State of New York, Second Judicial Department, on the 21st day of January 1957; (2) by engaging in unethical and improper conduct in that, while a Justice of the Supreme Court, he maintained in his judicial chambers exclusive custody, control and management of the moneys, accounts, books and financial records of the firms of Friedman and Friedman and M. Malcolm Friedman without properly preserving or accounting therefor and, moreover, would not surrender the same to M. Malcolm Friedman despite reasonable and proper demands therefor; (3) by violating and failing to observe the concept, spirit and letter of the canons of judicial ethics, and by causing M. Malcolm Friedman to violate and to fail to observe the canons of professional ethics.'

Trial was scheduled for October 19, 1962 but was adjourned, without date, to give counsel an opportunity to agree on a stipulated record. Claimant's counsel objected to incorporating into the record evidence about two matters relating to claimant's alleged practice of law in violation of the State Constitution and claimant's alleged violation of the State and Federal Income Tax Laws. Objection was made on the ground that the evidence related to matters which had never been charged, and as to which neither claimant nor various State officers had ever been given any notice. On December 10, 1962 the Court on the Judiciary considered the objection, overruled it and declared that the evidence would be received.

The trial was held in January and February, 1963. On February 26, 1963 the court handed down its decision dated February 22, 1963 holding that the charges had been sustained and, therefore, claimant should be removed from his office as Justice of the Supreme Court.

Claimant subsequently presented to the court his petition and a proposed order to show cause to vacate the decision of the court on the grounds (1) that two of the members of the court were not present when the court was convened on August 15, 1962 and that, therefore, the Court on the Judiciary was never properly composed; (2) that proper notice of all the charges within 60 days before the trial was not given to the Governor of the State of New York, the President of the Senate, the Temporary President of the Senate, and the Speaker of the Assembly; and (3) that the proceedings contravened the due process provision of the Fourteenth Amendment to the United States Constitution.

In essence, claimant contended that the court had been without jurisdiction to proceed with the matter. Treating the proposed show cause order as a motion to vacate its determination, the court denied the motion, holding that it had been properly convened and had complied with the procedural requirements of the State Constitution.

Thereafter claimant made several abortive attempts to obtain an adjudication that his removal by the Court on the Judiciary was void. He filed a notice of appeal to the Appellate Division, Third Department, from the decision of the Court on the Judiciary. In addition, he sought review there by way of article 78. Both the appeal and the article 78 proceeding were dismissed on the ground that the Appellate Division lacked jurisdiction to directly or collaterally review the jurisdiction of the Court on the Judiciary (Matter of Friedman, 19 A.D.2d 120, 241 N.Y.S.2d 793).

Claimant also appealed to the United States Supreme Court from the determination of the Court on the Judiciary claiming Federal constitutional violations. The Supreme Court dismissed (one Justice dissenting) holding that no substantial Federal question was presented (Friedman v. Court on Judiciary of New York, 375 U.S. 10, 84 S.Ct. 70, 11 L.Ed.2d 40).

An article 78 proceeding instituted against the New York City Comptroller in the Supreme Court, New York County, to compel payment of the city's share of the salary that claimant alleges is owed to him was also dismissed on the ground that 'the relief sought in the petition is not available in a proceeding under article 78 of the Civil Practice Act' (Matter of Friedman v. Beame, N.Y.L.J., Nov. 4, 1963, p. 14, col. 7). On appeal the Appellate Division, First Department, affirmed (20 A.D.2d 969, 249 N.Y.S.2d 392).

The instant action was brought in the Court of Claims to recover that portion of claimant's salary payable by the State from the date of his removal to the date of the filing of the claim, February 18, 1965, alleging that claimant was never legally removed from his elected office and was, therefore, entitled to the salary accrued and would continue to be entitled to salary until the expiration of his term of office of December 31, 1970. The State moved to dismiss his claim on the grounds that the Court of Claims lacked jurisdiction of the subject matter of the claim and that the claim failed to state a cause of action. The Court of Claims, in granting the motion to dismiss, did so on the ground that the claim was barred by res judicata since the Court on the Judiciary had ruled adversely to the claimant on the issue of its own jurisdiction to remove him and that determination could not be collaterally attacked. The Appellate Division, Third Department, reversed in an opinion by Staley, J., 29 A.D.2d 162, 286 N.Y.S.2d 525, and held that, since claimant's collateral attack was directed, not at factual issues previously litigated, but at the legal conclusion of the Court on the Judiciary as to its own jurisdiction to remove claimant, the determination of the jurisdictional issue by the Court on the Judiciary was not Res judicata and did not preclude the claimant from attacking the validity of that determination in his present action. Justice Gibson dissented in a memorandum and voted to affirm on the ground that it 'is unthinkable * * * that claimant should be entitled to recover salary allocable to the office from which he was thus removed, and to which he cannot be restored, for services that he did not perform and could not have lawfully performed'. The Appellate Division granted leave to appeal to this court and certified three questions: (1) Was the Appellate Division correct in reversing the order and judgment of the Court of Claims for the reason that the judgment of the Court on the Judiciary was not Res judicata as to the present claim? (2) Does the Court of Claims have jurisdiction of the subject matter of the claim? (3) Does the claim state a cause of action? For the reasons which follow, it is concluded that questions one and two should be answered in the affirmative and question three in the negative, 29 A.D.2d 906, 289 N.Y.S.2d 400.

In this case, we are concerned with the 'estoppel' aspect of the doctrine of Res judicata by which 'Any right, fact, or matter in issue, and directly adjudicated on, or necessarily involved in, the determination of an action before a competent court in which a judgment or decree is rendered on the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and privies whether or not the claim or demand, purpose, or subject matter of the two suits is the same' (50 C.J.S. Judgments § 592, p. 11). Simply put, under the doctrine of Res judicata a matter once judicially decided is finally decided; therefore, a litigant will not be heard to attack collaterally a matter which was or could have been determined in the prior litigation. Orderly procedure and repose in litigation demand that available methods of direct review be used as a vehicle for the correction of alleged errors.

In holding that claimant was prevented by the doctrine of Res judicata from collaterally attacking his removal, the Court of Claims in pertinent part said:

'Issues of jurisdiction may be, as any other matter, the subject of Res judicata. (United States v. Eastport Steamship Corporation, 255 F.2d 795 (2d Cir., 1958).) A court has the authority to pass upon its own jurisdiction, and its determination sustaining jurisdiction against attack, while open to direct review, is Res judicata in a collateral action. (Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940).) Claimant here raised the question of jurisdiction in the proceedings before the Court on the Judiciary, and the issue was determined adversely to him. * * *

'The doctrine of Res judicata is not restricted to...