People ex rel. Childs v. Extraordinary Trial Term of Supreme Court

Decision Date20 April 1920
PartiesPEOPLE ex rel. CHILDS v. EXTRAORDINARY TRIAL TERM OF SUPREME COURT et al.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Prohibition proceeding by the People, on the relation of William Hamlin Childs, against the Extraordinary Trial Term of the Supreme Court, alleged to be held in and for the county of New York, under and pursuant to a proclamation of the Governor dated July 31, 1917, and others. From an order of the Appellate Division, First Department (184 App. Div. 829,171 N. Y. Supp. 922), granting relator's application for an absolute writ, defendants appeal.

Reversed, writ dismissed, and motion denied.

Collin and Crane, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, First department.

Edward Swann, Dist. Atty., of New York City (Robert S. Johnstone, of New York City, of counsel), for appellants.

John B. Stanchfield, of New York City, for respondent.

POUND, J.

The Judiciary Law (Consol. Laws, c. 30), section 153, provides that--

‘The Governor may, when, in his opinion the public interest so requires, appoint one or more extraordinary Special or Trial Terms of the Supreme Court. He must designate the time and place of holding the same, and name the justice who shall hold or preside at such term, and he must give notice of the appointment in such manner as, in his judgment, the public interest requires.’

Pursuant thereto Gov. Whitman, on July 31, 1917, issued his proclamation or order appointing an extraordinary Trial Term of the Supreme Court to be held at the county courthouse in the county of New York on August 27, 1917, to continue so long as it might be necessary for the transaction of the business to be brought before it. He designated Hon. John W. Goff, one of the justices of the Supreme Court, to hold the term, and directed that a grand jury be drawn to serve thereat. He ordered that notice of the appointment be given by publication of his order in each week for two successive weeks in the Morning Telegraph and the Sun. The order was not published as directed by the Governor. It was published once in each week for two weeks in the Sun and for two successive days in the same week in the Morning Telegraph.

Justice Goff summoned a grand jury and opened the term on the day appointed. This grand jury found a number of indictments, and was discharged on January 18, 1918. On February 21, 1918, another grand jury was ordered drawn, and was impaneled on March 19, 1918. It was charged to inquire into violations of the so-called Corrupt Practices Act (Consol. Laws, c. 17, §§ 540-561) in connection with the primary and general elections of the year 1917. On May 8, 1918, the grand jury found indictments against the relator and others, charging them with making and causing to be made a false statement concerning the expenditures of a political committee. They were thereupon arraigned, but pleading was deferred until May 22, 1918. A large amount of other business had been transacted by the court without objection, but relator, believing that defendants were proceeding without jurisdiction in the prosecution of such indictments, applied for and obtained a writ of prohibition, commanding them to refrain from proceeding further thereon. He, and the others indicted with him, had full knowledge of the existence of the extraordinary term, and knew that their acts were before the grand jury for its consideration.

The omission to publish the order in strict conformity with its provisions, it has been held, left the extraordinary Trial Term without jurisdiction. The opinion of the court below, in which three justices concur, states, with entire accuracy, that ‘the defective publication in the instant case is of no importance, and the objection merely technical,’ and that the same objection, if made after judgment, would not be considered of much merit unless defendant could show that in some manner he has been deprived of a substantial right. This court has said in People v. Duffy, 212 N. Y. 57, 63,105 N. E. 839, 840 (L. R. A. 1915B, 103, Ann. Cas. 1915D, 176), speaking by Hiscock, J., of an alleged omission properly to file and publish an appointment of a new Trial Term duly made by the Appellate Division, that--

‘The court itself was appointed by the Appellate Division which had power to appoint it, and all of its proceedings were conducted in accordance with the due forms of law as prescribed by the Constitution and by the statute. It is not claimed that the defendant's rights were in any manner diminished or prejudiced by the alleged omission of which the complains, and under such circumstances his objection of a purely technical...

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    ...Term, 184 N.Y. 30, 76 N.E. 732; People ex rel. Livingston v. Wyatt, 186 N.Y. 383, 79 N.E. 330, Supra; People ex rel. Childs v. Extraordinary Trial Term, 228 N.Y. 463, 127 N.E. 486.) It is not available ordinarily as a method of premature appeal. Nevertheless, where the lower court is exceed......
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    ...v. Trial Term, Part 1, 184 N. Y. 30, 76 N. E. 732; People ex rel. Livingston v. Wyatt, supra; People ex rel. Childs v. Extraordinary Trial Term of Supreme Court, 228 N. Y. 463, 127 N. E. 486. It is not available ordinarily as a method of premature appeal. Nevertheless,where the lower court ......
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