People ex rel. Livingston v. Wyatt

• Decision Date: 20 November 1906
• Citation: 79 N.E. 330,186 N.Y. 383
• Parties: PEOPLE ex rel. LIVINGSTON v. WYATT, Justice.
• Court: New York Court of Appeals Court of Appeals

186 N.Y. 383

79 N.E. 330

PEOPLE ex rel. LIVINGSTON

v.WYATT, Justice.

Court of Appeals of New York.

Nov. 20, 1906.

Appeal from Supreme Court, Appellate Division, First Department.

Application for writ of prohibition by the people of the state of New York, on the relation of Meyer W. Livingston against W. E. Wyatt, justice of the Court of Special Sessions of the First Division of the city of New York. From a judgment denying the application for an absolute writ and vacating the alternative writ, affirmed by Supreme Court, Appellate Division (99 N. Y. Supp. 114), relator appeals. Affirmed.

The relator alleged in his petition for the writ that on the 10th of December, 1905, a paper purporting to be a subpoena was served upon him, of which the following is a copy, viz.: ‘State of New York-ss.: In the Name of the People of the State of New York, to Meyer W. Livingston, No. 212 West 42nd Street. Having reason to suppose an offense has been committed and for the purpose of investigating whether it has been committed, you are commanded to appear before me, William E. Wyatt, a justice of the Court of Special Sessions of the First Division of the city of New York, at the building for Criminal courts, Franklin and Center streets, in said city on the 19th day of December, 1905, at three o'clock in the afternoon of that day as a witness for that purpose. And then and there to bring with you and produce all the books, papers and records in your possession or under your control of the firm of Klaw & Erlanger covering the period from January, 1896, down to the present time, including journals, day books, cash books, blotters, ledgers; also all checks drawn by said firm on any bank and returned to said firm; also all check books, stub books and bank pass books of said firm; all letters, copies of letters and letter press copy books of said firm; also the originals and copies of the theatrical agreement entered into in 1896 between Marc Klaw, Abraham L. Erlanger, Samuel F. Nirdlinger (sometimes known as Samuel F. Nixon), J. Fred Zimmerman. Charles Frohman, and Al Hayman; also the original and copies of the theatrical agreement entered into or about April 23, 1900, between the same persons; also the originals and all copies of any agreements entered into between the last named persons or any of them or by the firm of Klaw & Erlanger and each or any of the following named persons, viz.: Moses Reis, Julius Cahan, Edward D. Stair, John A. Haviland, Stair & Haviland. And for a failure to attend or produce said books and papers you will be deemed guilty of criminal contempt and liable to a fine of $250 and imprisonment for thirty days.’ The subpoena was duly signed by the magistrate over his official title.

The relator further alleged, in substance, that 18 other persons whose names were given had been served with a similar paper; that the information was insufficient to confer jurisdiction upon the magistrate; that the relator was ‘unaware as to whether or not he’ was himself a defendant or charged with a crime sought to be investigated; that the proceedings were conducted by the magistrate in secret; that counsel for the witnesses were excluded; and that the proceedings were wholly in the interest of private parties and not to vindicate public justice.

The affidavit of Edward Bloom, read in support of the petition, stated that he was one of the witnesses upon whom a similar subpoena was served; that he obeyed the writ, was sworn by the magistrate, and that his examination ‘was conducted by Deputy Assistant District Attorney Kresel, who was prompted with regard to many of the questions by Mr. Wickwire, who, your deponent is informed and believes, is an attorney at law, connected with the office of Messrs. Guggenheimer, Untermeyer & Marshall, who have heretofore represented David Belasco in the various civil actions which have been pending between Messrs. Klaw & Erlanger and David Belasco; that nearly all of the questions asked by Deputy Assistant District Attorney Kresel were prompted by the said Wickwire, who, in turn, was consulting what deponent believes to have been a transcript of the proceedings in the civil actions aforesaid.’ Belasco Co. v. Klaw, 48 Misc. Rep. 597,97 N. Y. Supp. 712.

An alternative writ was issued, to which the respondent made return that on the 18th of December ‘one Isador J. Kresel, a deputy assistant district attorney,’ laid before him as such magistrate ‘an information in writing charging, upon the information and belief of the affiant, that certain persons therein named had committed a certain definite and specified crime, and praying that subpoenas might issue to require the attendance of other persons having knowledge in relation to the matter therein complained of; that the said information does not charge the relator herein with any crime or offense; that the contents of the said information and the names of the persons charged with offenses' were not set forth, because public policy, as well as the provisions of law, required that they should be kept secret ‘until the arrest of the defendant against whom a warrant’ might be issued; that for the same reason all persons were excluded from the examination, ‘except the witness under examination, a stenographer, the informant, and the counsel assisting him, one Arthur M. Wickwire’; that ‘acting as a magistrate and having duly determined that the facts set forth in the said information constitute a crime, and that the interests of public justice require that the matter should be inquired into, and that the depositions of persons having knowledge of the said matters should be secured and the said informant having requested of me subpoenas for the witnesses whom he desired to examine in support of his information, I duly issued said subpoenas, including among others a subpoena directed to the relator herein.’ The answer to the return set forth no fact and made no denial, but simply alleged certain legal conclusions.

The Special Term denied the application for an absolute writ and vacated the alternative writ. The Appellate Division affirmed unanimously as matter of law, and not in the exercise of discretion, and the relator appealed to this court.

Edward T. Bartlett, J., dissenting. Willard Bartlett, J., dissenting in part. Bartlett, J., dissenting in part.Edward Lauterbach, for appellant.

Wm. Traverse Jerome, Dist. Atty. (Robert C. Taylor, of counsel), for respondent.

VANN, J. (after stating the facts).

The return states that a written information was laid before the magistrate, charging, upon information and belief, that certain persons therein named had committed a definite and specific crime. The information itself was not made a part of the return because in the opinion of respondent public policy forbade, but it was expressly stated that the relator himself was not charged with any offense. If the return was not full enough, the relator should have moved for a further return, instead of moving for an absolute writ upon the papers as they were. He neither traversed the return as made nor moved for a new one, but in effect demurred to the facts stated as insufficient to show jurisdiction in the magistrate to proceed with the investigation. Upon a motion for an absolute writ without a trial of the issues, the return was conclusive as to all matters denied by the respondent and as to any new matter alleged therein not denied by the relator, including the substance of the information.

It is insisted that the information should have been sworn to in order to give the magistrate jurisdiction to take any action, but the return shows, by fair implication, that this was the fact; for it is alleged that the information in writing charged ‘upon the information and belief of the affiant’ that a crime had been committed by a person named. An affiant is one who has made an affidavit, and an affidavit is a written statement sworn to before some officer authorized by law to administer oaths. Black, Law Dict. 49; Anderson, 39; Bouvier, 111.

It is further claimed that the information, even if sworn to, was insufficient because the allegations thereof were stated only upon information and belief, and that it does not appear that the sources of information or the grounds of belief were set forth. Originally an information was a criminal proceeding at the suit of the king without a previous indictment or presentment by a grand jury. It could be preferred only by a responsible public officer when duly supported by affidavit, was limited to misdemeanors, and was a substitute for an indictment. In this sense it is unknown to the law of this state. By the Revised Statutes it was called a complaint relating to a criminal offense. 3 R. S. 706 marg. page. By the Code of Criminal Procedure it is defined as ‘the allegation made to a magistrate, that a person has been guilty of some designated crime.’ Code Cr. Proc. § 145. The statute does not expressly provide that it is to be sworn to, nor even that it must be in writing, although the word ‘allegation’ from the analogy of other judicial proceedings points to that formality. Some light is thrown upon the substance and office of the information by other sections, which we quote as follows: ‘When an information is laid before a magistrate, of the commission of a crime, he must examine under oath the informant or prosecutor, and any witnesses he may produce, and take their depositions in writing and cause them to be subscribed by the parties making them.’ Section 148. ‘The depositions must set forth the facts stated by the prosecutor and his witnesses, tending to establish the commission of a crime and the guilt of the defendant.’ Section 149. ‘If the magistrate be satisfied therefrom, that the crime complained of has been committed and that there is reasonable ground to believe that the defendant has committed it, he must issue a warrant of arrest.’ Section 150. The form for a warrant, as authorized by ...