James v. Powell

• Decision Date: 27 October 1966
• Citation: 277 N.Y.S.2d 955,52 Misc.2d 1048
• Parties: Esther JAMES, Plaintiff, v. Adam Clayton POWELL, Jr., Defendant.
• Court: New York Supreme Court

Page 955

277 N.Y.S.2d 955

52 Misc.2d 1048

Esther JAMES, Plaintiff, v. Adam Clayton POWELL, Jr., Defendant.

Supreme Court, Trial Term, New York County, Part VIII.

Oct. 27, 1966.

Raymond Rubin, New York City, for plaintiff.

Henry R. Williams, New York City, for defendant (Henry R. Williams, Thomas V. Sinclair, Jr., Lawrence R. Bailey, William C. Chance, Jr., New York City, of counsel).

MATTHEW M. LEVY, Justice.

After duly obtaining a money judgment in this court against the defendant, Adam Clayton Powell, Jr., (see: James v. Powell, N.Y.L.J., April 8, 1963, page 2, col. 8; April 9, 1963, page 2, col. 2, mod. and aff'd, 20 A.D.2d 689, 246 N.Y.S.2d 998, aff'd 14 N.Y.2d 881, 252 N.Y.S.2d 87, 200 N.E.2d 772, cert. den. 379 U.S. 966, 85 S.Ct. 659, 13 L.Ed.2d 559) and being unable to collect the same by execution, the plaintiff, Esther James, endeavored to obtain payment thereof by utilizing the special supplementary proceedings authorized by Article 52 of the Civil Practice Law and Rules, which, among other things, provided for examination under oath of a judgment debtor in respect of his assets. The plaintiff also instituted an action against the defendant (and his wife) in which damages were sought for fraud and conspiracy, in that the defendant Powell allegedly transferred certain of his property so as to evade the payment to the plaintiff of the judgment hereinbefore referred to (see: James v. Powell, 25 A.D.2d 1, 266 N.Y.S.2d 245; 26 A.D.2d 525, 270 N.Y.S.2d 789). In that action, the plaintiff sought to obtain a pre-trial examination under oath of the defendant by invoking the disclosure proceedings provided for in CPLR Art. 31.

The defendant did not honor any of the subpoenas or orders requiring him to appear for such examinations--on five separate occasions. The plaintiff made several applications before a number of Justices of this Court to punish the defendant for civil contempt. None resulted in the defendant's appearance for examination.

Section 753 of the Judiciary Law, providing for civil contempt, states that 'A court of record (which, of course, the Supreme Court of this State is) has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, or prejudiced, in any of the following cases:

'3. A party to the action or special proceeding, * * * for any other disobedience to a lawful mandate of the court.'

'5. A person subpoenaed as a witness, for refusing or neglecting to obey the subpoena, or to attend * * * as a witness.'

Section 750, subd. A of the Judiciary Law provides that 'A court of record has power to punish (by fine or imprisonment or both) for a criminal contempt, a person guilty of * * *

'3. Wilful disobedience to its lawful mandate.'

On November 26, 1965, the defendant was duly served with a subpoena in supplementary proceedings, requiring his appearance in court on December 16, 1965. He ignored the subpoena. On application to the court, the plaintiff obtained an order requiring the defendant to show cause why he should not be 'punished for contempt'. The defendant was served with that order to show cause on December 20, 1965. It was returnable at the Special Term for Motions of this court on January 7, 1966. The motion was duly adjourned to January 12, 1966. On that date, the defendant did not appear. The plaintiff orally moved (in consonance with the provision in the order to show cause that the plaintiff might ask for 'other and further relief') for leave to include in her motion an application to punish the defendant not only for civil contempt (to which relief the order to show cause and the supporting affidavit might--it was thought--be construed to be limited), but for criminal contempt as well. On July 25, 1966, the learned Justice presiding at Special Term denied the plaintiff's motion. Thereafter, and on August 1, 1966, the plaintiff's attorney wrote a letter to the Justice requesting 'reargument of your decision denying the motion to punish the defendant Adam Clayton Powell, Jr. for contempt--both civil and criminal * * * and upon the reargument hold the judgment debtor Adam Clayton Powell, Jr. in civil and/or criminal contempt.' A copy of that letter was sent to the defendant's attorney.

On August 3, 1966, the court decided that it 'will hear counsel on the plaintiff's application for reargument * * * on August 9, 1966' (N.Y.L.J., August 8, 1966, page 8, col. 4). The defendant's attorney was duly notified accordingly, and, on the date fixed, counsel for both parties appeared. The defendant's attorney raised the issue that the defendant had not been duly served with the order to show cause. Both counsel consented in open court to proceed forthwith to a trial by the court at Special Term as to the adequacy of the service. Such hearing was held on August 9 and 12, 1966, before the Justice there presiding, and the court ruled that the defendant was duly served (N.Y.L.J., August 29, 1966, page 14, col. 6). During and at the close of that hearing on the traverse, it was made clear beyond peradventure of doubt that the defendant was now being proceeded against for criminal contempt too, and in respect of all of the alleged disobediences by the defendant of the mandates of the court. The Justice at Special Term indicated that there should be a trial on that score as to whether the defendant's disobediences were 'wilful', and invited expressions of counsel's views as to the forum for that trial--that is to say, a judge alone, a referee alone, or a judge and jury. The plaintiff's attorney stated that he preferred judge or referee; the defendant's counsel informed the Court that he wished a trial by jury, and submitted a proposed order to that effect.

On September 16, 1966, the learned Justice at Special Term signed and entered an order, which, among other things, formally granted the plaintiff's motion for reargument, recalled the prior order denying the motion to punish for contempt, sustained the service of the order to show cause, and

'Ordered on the judicially noticed record in this proceeding of prior adjudications of contempt against this defendant that this special proceeding to punish the defendant Adam Clayton Powell, Jr. for a criminal contempt pursuant to Judiciary Law, Section 750.A.Sub. 3. be and hereby is granted to the extent of directing a trial to a jury of the issue of the wilfulness as determinant of the guilt of the defendant Adam Clayton Powell, Jr. of criminal contempt in failing to appear pursuant to the subpoena on the 16th day of December 1965, and on prior occasions including the 20th day of September 1963, the 1st day of May, 1964, the 27th day of November, 1964, and the 24th day of November 1965.'

The order also directed that this special proceeding and the aforementioned issue be placed on the appropriate jury trial calendar for September 21, 1966. A copy of this order with notice of entry was duly served upon the defendant's attorney. When the cause appeared upon the Jury Day Calendar, the defendant was represented by counsel, and it was duly assigned for trial to that part of the court at which I was presiding. The issue was reached for trial on my calendar on October 5, 1966.

The defendant, through his attorney, interposed two objections when the matter was reached for trial before me--one, to the jurisdiction of the court over the person of the defendant; and the other, to the jurisdiction of the court over the subject matter of the proceeding. I noted at the time that I deemed myself bound by the order of Special Term and that it made 'the law of the case'; and that the order, in respect of the trial, directed a jury determination of the narrow and limited 'issue of the wilfullness as determination of the guilt of the defendant Adam Clayton Powell, Jr., of criminal contempt in failing to appear' for examination on the several dates specified in the order. I, nevertheless, informed the defendant's counsel that, if they wished, I would study the points raised by them upon receipt of briefs--pro and con from the respective parties--reserving decision on the objections in the meanwhile, but that I would not permit the trial to be postponed or delayed--since the issues raised by the defendant had not been previously supported by briefs theretofore requested by me. (Indeed, the briefs were not filed until some time later). Thereupon, the defendant's four counsel, after consultation among themselves--at least--and with full opportunity to confer with their client, elected not to participate in the trial. Thus, the defendant voluntarily and deliberately assumed the calculated risk of the possible invalidity of his objection that the court had no jurisdiction--insofar as the conduct of the trial before me was concerned. During the trial, the defendant, through communication with his attorney, was given a further opportunity 'to make a defense' (Jud. Law § 751). The defendant chose not to avail himself thereof.

The jury's verdict, after the presentation of proof by the plaintiff--oral and documentary--and the charge of the court, was that the defendant's disobedience was wilful in each instance.

I hold that, when the Court at Special Term, after hearing both parties, granted the plaintiff's motion to punish the defendant 'for a criminal contempt * * * to the extent of directing a trial to a jury of the issue of the wilfullness as determinant of the guilt of the defendant Adam Clayton Powell, Jr., of criminal contempt', the law of the case was...