Shlakman v. Board of Higher Ed. of City of New York
| Decision Date | 05 April 1957 |
| Citation | 5 Misc.2d 901,161 N.Y.S.2d 529 |
| Parties | Application of Vera SHLAKMAN, Bernard F. Riess, Harry Slochower, Sarah R. Reidman, Henrietta A. Friedman and Melba Phillips, petitioners, for an order pursuant to article 78 of the Civil Practice Act, v. The BOARD OF HIGHER EDUCATION OF the CITY OF NEW YORK, respondent, et al. |
| Court | New York Supreme Court |
Osmond K. Fraenkel, New York City, for stipulants.
Peter Campbell Brown, corp. counsel, New York City (Michael A. Castaldi and William F. Hartnett, Jr., New York City, of counsel), for respondent.
The above named petitioners, employees of respondent Board of Higher Education, appeared before the Internal Security Subcommittee of the United States Senate and, when questioned concerning their then or prior membership in the Communist party, refused to answer certain questions, asserting the privilege against self-incrimination afforded them under the Fifth Amendment of the Federal Constitution. Thereafter, in the latter part of 1952, respondent, proceeding pursuant to New York City Charter, section 903, terminated their employment. Petitioners, in November, 1952, instituted this article 78 proceeding seeking to annul the determination of the respondent. Special Term denied the application of the petitioners and dismissed the proceeding. 202 Misc. 915, 118 N.Y.S.2d 487. A notice of appeal was filed on behalf of all the petitioners on December 19, 1952. Thereafter, on January 23, 1953, petitioner Slochower retained new counsel, who was formally substituted in place of his then counsel, Witt & Cammer, Esqs., who continued to represent the remaining five petitioners.
On March 16, 1953, respondent terminated the employment of six additional employees for the same reasons that the petitioners were removed. These additional employees, who will hereinafter be referred to as the stipulants, also retained Witt & Cammer, Esqs., to institute proceedings on their behalf. In April, 1953, Harold I. Cammer, Esq., initiated discussions with the corporation counsel which culminated in the execution of a stipulation in the above captioned proceedings under date of May 20, 1953. The stipulation, after reciting that the issues of law and fact relating to the termination of employment of the stipulants are 'substantially similar to the issues of law and fact in the above entitled proceedings, * * * and that no useful purpose will be served by the institution of independent proceedings * * * or by formal intervention in the above entitled proceeding,' provided, inter alia:
(1) The named stipulants 'shall for all purposes he considered as parties to this proceeding to the end that the final order and judgment made herein in behalf of the present parties petitioner shall apply to and benefit or bind them, as the case may be, with the same force and effect as though they were formal parties petitioner.'
(2) 'The final order to be entered herein may at the request of counsel for the petitioners or of counsel for the respondent refer to and include [the named stipulants] within its terms so that the claim for reinstatement [of the named stipulants] shall be disposed of in the same manner and upon the same terms and conditions as are the claims to reinstatement of the petitioners formally named herein.'
The stipulation was signed by Harold I. Cammer, as attorney for the named stipulants, and by the corporation counsel.
The appeal then pending in the Appellate Division from the order dismissing the petition was argued separately by Cammer on behalf of his group of petitioners, and by Slochower's new counsel, and separate briefs were submitted. Following affirmance of Special Term by the Appellate Division, 282 App.Div. 718, 122 N.Y.S.2d 286, separate notices of appeal to the Court of Appeals were filed for Slochower and for the petitioners represented by Cammer. In the Court of Appeals separate briefs and oral arguments were submitted for Slochower and for Cammer's clients. The Court of Appeals affirmed. 306 N.Y. 532, 119 N.E.2d 373. By order of May 12, 1954, the order of the Court of Appeals was made the order of this court.
Motions were then made in the Court of Appeals by Cammer on behalf of those petitioners he then represented, and by Slochower's counsel, for reargument or to amend the remittitur. The motion was denied, except that the remittitur was amended solely as to Slochower. 307 N.Y. 806, 121 N.E.2d 629, so as to recite that 'questions under the Federal Constitution were presented and passed upon by the Court of Appeals, viz., whether the rights of the petitioner-appellant Slochower to due process under the Fourteenth Amendment to the Federal Constitution were violated by the construction and application herein of New York [City] Charter section 903 * * *.'
Petitioner Slochower eventually prevailed in the United States Supreme Court. [Slochower v. Board of Higher Education of City of New York], 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692. The other petitioners named sought unsuccessfully to amend the remittitur, [Daniman v. Board of Ed. of City of New York], 308 N.Y. 909, 127 N.E.2d 72, and, subsequent to the decision in the United States Supreme Court in the Slochower case, moved in the Court of Appeals for the relief afforded Slochower by the United States Supreme Court. This application was denied. 1 N.Y.2d 855, 153 N.Y.S.2d 231. Further proceedings on their behalf in the United States Supreme Court were fruitless, that court refusing to entertain jurisdiction.
By order entered October 4, 1956, the Court of Appeals, on the application of Slochower, directed that the remittitur, in so far as it related to him, be amended to conform with the mandate of the United States Supreme Court and directed his reinstatement, with back pay. The order of the Court of Appeals was made a final order of this court on January 2, 1957.
Presently, stipulants move for an order to include within the terms of the order entered in behalf of Slochower a provision 'to the end that the determination of the Board of Higher Education terminating the employment of each of them be annulled * * *.' Respondent cross-moves for an order directing that the final order entered on May 12, 1954 (which made the first order of the Court of Appeals the order of this court), be resettled so as to provide that it is determinative of the rights of the stipulants.
It is evident that when the parties entered into the stipulation of May 20, 1953, by reciting therein that the issues of law and fact relative to the discharge of the stipulants were similar to the issues of law and fact in the proceeding of the 'present parties petitioner,' they did not anticipate the possibility that different results might be reached as to some of the petitioners. Each side by the instant motions endeavors to claim the benefit of that portion of the split result which would be beneficial to it.
Stipulants in support of their motion advert to an independent proceeding brought in June, 1953, by one Julius Hlavaty against respondent involving his removal by respondent for the same reason the stipulants were removed. That proceeding was not disposed of by Special Term until October, 1956, which was subsequent to the decision by the United States Supreme Court in the Slochower case and the amendment of the remittitur in that case by the Court of Appeals to conform with the mandate of the United States Supreme Court. In the interim, by order entered October 24, 1955, in this court, the petition in Hlavaty's case had been amended nunc pro tunc so as to raise the federal question. Accordingly, Hlavaty prevailed and his reinstatement was ordered by Special Term.
It is contended by stipulants that their motion should be granted, since any other course would nullify the stipulation and destroy their rights. It is urged that if the stipulation had not been entered into they would,...
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