People ex rel. Siegal on Behalf of Schildhaus v. Dros
| Decision Date | 25 February 1959 |
| Citation | 17 Misc.2d 398,185 N.Y.S.2d 21 |
| Parties | PEOPLE of the State of New York ex rel. Herbert S. SIEGAL, on behalf of Arnold SCHILDHAUS, Relator, v. Edward DROS, Warden of the Workhouse of the City of New York, Hart Island, New York, Defendant. |
| Court | New York Supreme Court |
Herbert S. Siegal and Arnold Schildhaus, New York City, pro se.
Relator has sued out a writ of habeas corpus. On the argument, with the consent of the People, the relator was released on his own recognizance pending the determination of his application. He was directed to return to court on the date the court would render its decision. Relator returned to court to deliver himself into custody on that date. He was released on his own recognizance for two reasons: (1) to allow the court time to consider and determine this application unhurriedly, and (2) to reduce any claim for damages that the relator might later assert against the City of New York in the event the writ were sustained. Although this matter was argued several months past, only recently were the minutes of the trial submitted to the court for consideration.
By an information filed against him, relator was charged with having failed to properly register the ownership of a certain tenement building and also with having failed to cure a number of building violations filed against the said building, in violation of the Multiple Dwelling Code and laws. He challenged the jurisdiction of the Magistrate's Court, demurred to the charges, upon which a 'not guilty' plea was entered and vigorously contested the charges. He protested that he should not have been named a defendant, asserting that he acted merely as attorney for the corporate owner. The question before the Magistrate was whether the relator was acting merely as attorney or in fact as agent for the owner. The statute makes the agent answerable.
After a trying trial during which the learned Magistrate exhibited much patience, courtesy and consideration, he found relator guilty on both counts and imposed a sentence of a fine in the sum of $500 or imprisonment for thirty days in the workhouse in the event the relator failed to pay said fine. Electing not to pay the fine, on a date agreed upon with the court, relator surrendered to begin his term of imprisonment.
Relator is an attorney and has submitted in his own behalf a brief setting forth at great length the origin, history and development of the ancient writ of habeas corpus. In his brief he presents several points.
The only point that this court believes has merit is that challenging the jurisdiction of the Magistrate's Court, based on the claim that the information was not in fact sworn to by the affiant. It should be noted that the information is signed and bears a jurat, indicating that an oath was administered to the affiant. The record of the trial indicates that the Magistrate took testimony on this question. In form, content and execution, the information is sufficient on its face. The attack going behind its face as to whether the affiant actually swore to the information elicited the admissiion of the affiant that no oath was administered to him. The Magistrate overruled the relator's challenge to the jurisdiction of the court based on this point. The record contains evidence which would justify a finding of guilt on the charges.
The count charging the relator with having failed to cure the building violations charged him with a misdemeanor. As to this charge, it was essential that the court have jurisdiction to enter a lawful sentence. The court has considered the authorities cited by the relator, as well as others, on the question whether or not there was a jurisdictional defect in his trial and sentence. Nothwithstanding what may have been stated in earlier cases, the recent case of People v. Scott, 3 N.Y.2d 148, 164 N.Y.S.2d 707, is authority for sustaining relator's contention on this point. The majority opinion, N.Y.2d at pages 152-153, 164 N.Y.S.2d at page 711, by Froessel, J., states:
'In the present case, therefore, the question is whether the absence of a verified information is a formal or a jurisdictional defect * * * (italics the court's)
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'The requirement that a prosecution for misdemeanor be based upon a sworn information (unless, of course, made by a District Attorney) is an essential guarantee to a defendant of a fundamental right, namely,...
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People v. Schildhaus
...had been without jurisdiction to try him and that its judgment of conviction was consequently void (People ex rel. Siegal on Behalf of Schildhaus v. Dros, 17 Misc.2d 398, 185 N.Y.S.2d 21). The defendant's appeal from the judgment of conviction, taken prior to the initiation of the habeas co......
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People v. Coldiron
...formality, an accusatory instrument falls, even if on its face it appears to have been sworn to properly (People ex rel. Siegal v. Dros, 17 Misc.2d 398, 185 N.Y.S.2d 21, rev'd 14 A.D.2d 66, 217 N.Y.S.2d 417, rev'd 11 N.Y.2d 167, 227 N.Y.S.2d 431, 182 N.E.2d 106; People v. Semonite, 18 Misc.......
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