McDonald v. Colden

• Decision Date: 12 April 1945
• Citation: 294 N.Y. 172,61 N.E.2d 432
• Parties: McDONALD v. COLDEN, Judge.
• Court: New York Court of Appeals Court of Appeals

294 N.Y. 172

61 N.E.2d 432

McDONALD

v.COLDEN, Judge.

Court of Appeals of New York.

April 12, 1945.

Appeal from Supreme Court, Appellate Division, Second Department.

Proceeding in the matter of the application of William P. McDonald, petitioner, against Charles S. Colden, judge of the county court of the county of Queens, to review and annul a determination and order of the respondent, 181 Misc. 407, 41 N.Y.S.2d 323, adjudging petitioner guilty of a criminal contempt of court in refusing to be sworn as a witness before the grand jury for the September, 1940, term of the county court of Queens county under Civil Practice Act, s 1283 et seq. From an order of the Appellate Division, 267 App.Div. 881, 46 N.Y.S.2d 467, which unanimously confirmed such determination, the petitioner, by permission of the Court of Appeals, appeals.

Affirmed. George Morton Levy, of Mineola, and Walter G. McGahan and Irving Goldberg, both of New York City, for appellant.

Nathaniel L. Goldstein, Atty. Gen. (William F. McNulty, Orrin G. Judd, and Harry F. Karst, all of New York City, of counsel), for respondent.

LEHMAN, Chief Judge.

The appellate was served with a subpoena commanding him to appear on June 30, 1942, before the Grand Jury of the County of Queens, empanelled for the September 1940 Term of the County Court, ‘as a witness in a criminal action prosecuted by the People of the State of New York against ‘John Doe’ and ‘Richard Roe“. Upon his appearance before the Grand Jury at the time and place specified in the subpoena he declined to be sworn and to testify upon the ground that the ‘September 1940 Term of the Queens County Court was not properly continued after the month of March, 1941, and that by virtue thereof your Grand Jury was not legally or duly constituted and was without power to administer a legal oath or to confer upon me the immunity to which I would otherwise be entitled under the law by reason of any testimony which I might give.’ An application was thereuponmade to the court by the Foreman of the Grand Jury for an order adjudging the appellant guilty of contempt of court pursuant to the provisions of section 750 of the Judiciary Law, Consol.Laws, c. 30. The court on October 29, 1942, made an order which ‘adjudged that the said grand jury for the September 1940 Term of this Court was and is duly and legally constituted’ and which directed the appellant on November 5th ‘to appear before said grand jury and be sworn and that he answer all proper questions put to him.’ The appellant on November 5, 1942, appeared but again declined to be sworn and to testify upon the grounds previously stated, and for that refusal he was adjudged guilty of a criminal contempt of court and was fined the sum of $250. By permission of this court he has appealed from the unanimous order of the Appellate Division confirming the determination of the County Court adjudging the appellant in contempt.

The Grand Jury for the September 1940 Term of the County Court of Queens County was empanelled on September 9, 1940, at the regular September 1940 Term of the court, established pursuant to an order made by the judges of that court. At that time an assistant Attorney-General specially appointed for that purpose was conducting an investigation in Kings County of possible criminal acts in connection with paving contracts made by the City of New York. In the course of the investigation it became apparent that he might find it necessary to invoke action by a grand jury in Queens County, and accordingly an assistant commenced to present evidence to the 1940 Grand Jury, summoned for the regular September 1940 Term of the County Court which had theretofore considered matters presented by the District Attorney of the County not connected with the investigation of paving contracts. The problem presented upon this appeal is whether the September 1940 Term still continued and the Grand Jury empanelled for that term still functioned as an arm of the court in June and in November, 1942.

In the English common-law courts, terms were ‘instituted’ or were ‘gradually formed from the canonical constitutions of the church’. It is said that in early times ‘the church interposed and exempted certain holy seasons from being profaned by the tumult of forensic litigation’. Later, when the State alone exercised authority in common-law courts, ‘the commencement and duration of our law terms were appointed with an eye to these canonical prohibitions'. 3 Blackstone's Com. ch. XVIII, 275, 276. This court, speaking through Commissioners of Appeals, has said that in common-law courts as distinguished from courts of equity, ‘strict judicial business could only be transacted at these terms, though, after a time, many incidental matters were transacted out of court. (3 Blackstone's Com. 275, 279; Spelman's Origin of Terms, passim). The terms of court, thus, have a purely historical character, and there is no reason, in the nature of judicial business, why they should exist, nor why such business should be confined to them.’ Brown v. Snell et al., 57 N.Y. 286, 300.

Under the Constitution and statutes of New York, and generally throughout the United States, the general rule still is that ‘strict judicial business' should be confined to stated terms of the courts. ‘It is necessary that the times and places of holding courts be fixed in advance that jurors can be drawn therefor, and that notices can be given and the necessary steps taken to obtain jurisdiction of the parties in civil and criminal actions and proceedings.’ Saranac Land & Timber Co. v. Roberts, 227 N.Y. 188, 193, 194, 125 N.E. 102, 104. The September 1940 Term of the Queens County Court was appointed for a fixed period and it ended with the expiration of that period unless it was continued thereafter in accordance with the law of the State. Reynolds v. Cropsey, 241 N.Y. 389, 150 N.E.2d 303.

The Judiciary Law, section 190, provides that ‘the county judge must, from time to time, appoint the times and places for holding terms of his court’ and that ‘each term may continue as long as the county judge deems necessary.’ In the case now under consideration it appeared during September, 1940, that the Grand Jury would not complete its consideration of evidence which the Attorney-General intended to present to it during the period of time for which the September 1940 Term was appointed and accordingly, on September 30, 1940, the court directed that the September Term be continued for and during the months of October, November and December, 1940. The Grand Jury held regular meetings during these months and the...