Friedman v. State

Decision Date23 January 1968
Docket NumberNo. 44913,44913
Citation286 N.Y.S.2d 525,29 A.D.2d 162
PartiesLouis L. FRIEDMAN, Appellant, v. STATE of New York, Respondent. Claim
CourtNew York Supreme Court — Appellate Division

Davis, Polk, Wardwell, Sunderland & Kiendl, New York City (John T. DeGraff, Albany, and Richard E. Nolan, New York City, of counsel), for appellant.

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

Before GIBSON, P.J., and HERLIHY, AULISI, STALEY and GABRIELLI, JJ.

OPINIONS FOR AFFIRMANCE AND REVERSAL

STALEY, Justice.

This is an appeal from a judgment and order in favor of respondent, upon a decision of the Court of Claims which dismissed appellant's claim for salary allegedly due him as an elected Supreme Court Justice.

At the general election in November 1956, claimant-appellant was duly elected to the office of Justice of the Supreme Court of the State of New York, Second Judicial District, for a term of 14 years commencing January 1, 1957, and terminating December 31, 1970, and duly qualified by filing his oath of office and, on January 1, 1957, assumed said office. On February 22, 1963 an order was made by the Court on the Judiciary removing appellant from his office as Justice of the Supreme Court, proceedings having previously been held pursuant to section 9--a (now § 22) of article VI of the Constitution of the State of New York. (Matter of Friedman, 12 N.Y.2d (a)--(e).)

Thereafter, appellant challenged the jurisdiction of the Court on the Judiciary to make an order removing him from office, asserting that the court was without jurisdiction to entertain the removal proceeding since only four members were present at the initial organization meeting held on August 15, 1962; that the written notice of the nature of the charges against him, required by the constitution, was not given to the State officials entitled thereto; and that because the court acted as prosecutor, judge and jury, appellant's right to due process under the Fourteenth Amendment of the United States Constitution was violated. The Court on the Judiciary, considered appellant's motion to set aside its determination on the merits, and by order dated April 3, 1963, denied the motion. (Matter of Friedman, 12 N.Y.2d (e).)

On August 16, 1963 claimant filed a notice of intention to file a claim with the Clerk of the Court of Claims. On February 18, 1965 a formal notice of claim was filed, wherein the appellant alleged that he was a duly elected and qualified Justice of the Supreme Court, and was entitled to the salary of such office; that the State of New York had failed to pay such salary for the period commencing February 23, 1963 to February 17, 1965, and sought judgment awarding him the amount of such salary and all additional sums which would become due to the date of entry of judgment, together with appropriate interest.

On August 29, 1966 the respondent moved for an order dismissing the claim on the grounds that the Court of Claims lacked jurisdiction of the subject matter, and that the claim failed to state a cause of action. The notice of motion indicated that it was being brought 'upon the decision and order of the Court on the Judiciary, dated February 22, 1963 * * * and upon the claim and all papers and proceedings herein.'

The Court of Claims dismissed the claim on the ground that the claim was a collateral attack upon the jurisdiction of the Court on the Judiciary and that question, having been litigated and determined adversely to the claimant before the Court on the Judiciary, the doctrine of Res judicata applied and barred the prosecution of the claim. The Court of Claims further concluded that the doctrine of Res judicata applied to issues of fact and to issues of law and, if the Court on the Judiciary exceeded its jurisdiction, the 'claimant's remedy was by direct review'. (Friedman v. State of New York, 53 Misc.2d 455, 278 N.Y.S.2d 999.)

The jurisdiction of the courts of the State rests upon law, both statutory and constitutional. A court without jurisdiction of the subject matter of an action, cannot acquire jurisdiction by an erroneous decision that it has jurisdiction, and the objection of want of jurisdiction may be raised at any stage. (Matter of Baltimore Mail S.S. Co. v. Fawcett, 269 N.Y. 379, 199 N.E. 628.)

On the motion to vacate the determination removing appellant from office, the Court on the Judiciary held on the basis of the proposed order to show cause and movant's supporting papers, without convening to hear argument, receive briefs or discussing the motion, that it was properly convened and had acted pursuant to the provisions of the Constitution which was, in effect, a determination that it had jurisdiction over the subject matter.

The Court on the Judiciary is a court of original jurisdiction but with limited power; that is, the removal of certain judges from office. It has no appellate or review powers and is authorized by the Constitution to act only in compliance with the provisions of the Constitution and acquires no jurisdiction unless and until it does so.

The Restatement of the Law of Judgments (1942) states:

' § 8--A judgment is void if there is failure to comply with such requirements as are necessary for the exercise of power by the court. § 11--A judgment which is void is subject to collateral attack both in the state in which it is rendered and in other states.'

The question to be determined here is whether or not the Court on the Judiciary could, as a matter of law, confer jurisdiction upon itself that was immune from further attack. Where a collateral attack is directed not at factual issues previously litigated, but rather at the legal jurisdiction of the court over the subject matter, a collateral attack on the legal conclusion of the prior court is proper. (Vander v. Casperson, 12 N.Y.2d 56, 236 N.Y.S.2d 33, 187 N.E.2d 109.)

In the leading case of O'Donoghue v. Boies, 159 N.Y. 87, 98--100, 53 N.E. 537, 539--540, the Court of Appeals upheld a collateral attack upon a prior judgment for a partition sale stating as follows:

'The question, therefore, is not what has been decided by the court in which the sale was ordered, but what it had jurisdiction and power to do. * * * The want of jurisdiction to render the particular judgment may always be asserted and raised, directly or collaterally, either from an inspection of the record itself, when offered in behalf of the party claiming under it, or upon extraneous proof, which is always admissible for that purpose. There is but one solitary exception to this rule, and that is in a case where jurisdiction depends on a fact that is litigated in a suit, and is adjudged in favor of the party who avers jurisdiction. Then the question of jurisdiction is judicially decided, and the judgment record is conclusive on that question until set aside or reversed by a direct proceeding. * * * While a court may acquire jurisdiction sufficient to exempt its judgment from collateral attack by deciding a disputed question of fact erroneously, it has never been held that it can acquire jurisdiction for any purpose by an error of law.'

The Court on the Judiciary, not having determined any disputed facts relative to jurisdiction, its ruling that it had jurisdiction could not preclude a subsequent collateral attack if, as a matter of law, it never had such jurisdiction. The determination of the Court on the Judiciary as to its own jurisdiction is, therefore, not Res judicata, and does not preclude the appellant from raising the issue of the validity of the judgment asserted against him in the...

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3 cases
  • Friedman v. State, 44913
    • United States
    • New York Court of Appeals Court of Appeals
    • 23 Abril 1969
  • Friedman v. State
    • United States
    • New York Court of Appeals Court of Appeals
    • 25 Septiembre 1969
    ...York, Appellant. Court of Appeals of New York. Sept. 25, 1969. Appeal from Supreme Court, Appellate Division, Third Department, 29 A.D.2d 162, 286 N.Y.S.2d 525. Action was brought to recover from the State salary payable from date of removal of Supreme Court Justice to date of filing of The......
  • Freidman v. State
    • United States
    • New York Supreme Court — Appellate Division
    • 8 Marzo 1968
    ...and for permission to appeal to the Court of Appeals from the resettled order, granted, without costs. Decision dated January 23, 1968, 29 A.D.2d 162, 286 N.Y.S.2d 525, amended to read 'Judgment and order reversed, on the law, without costs, and motion denied'; first decretal paragraph of o......

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