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CONSTITUTION OF THE STATE

OF NEW YORK

Art. I, § 1. Persons not to be disfranchised.

Right of trial in own county. This section would seem to guarantee a plaintiff in an action for false imprisonment the right of trial in his own county, which privilege belongs under the provisions of section 983 of the Code of Civil Procedure to citizens generally. Lawton v. Farrell (1917), 178 App. Div. 376, 164 N. Y. Supp. 838, aff'd. 221 N. Y. 654.

Manner of arranging names on ballots under subdivision 3 of section 331 of the Election Law held not to be unnecessarily arbitrary and discriminatory so as to violate the Constitution. Walsh v. Boyle (1917), 179 App. Div. 582, 166 N. Y. Supp. 681.

Art. I, § 2. Trial by jury.

Application.- Where the complaint entitles the plaintiff to have the cause placed on the Special Term calendar for trial, it would be an infringement of defendant's constitutional right to a trial by jury to hold the cause and proceed to judgment against the will of the defendant, after deciding that the plaintiff at no time had a cause of action in equity. Ohl & Co. v. Standard Steel Sections, Inc. (1917), 179 App. Div. 637, 167 N. Y. Supp. 184.

A counterclaim in an equitable action was unknown at common law and, therefore, the issues raised thereby are not within the constitutional provision as to trial by jury. Manhattan Life Ins. Co. v. Hammerstein Opera Co. (1918), 184 App. Div. 440, 171 N. Y. Supp. 678.

"A feeble minded person" has no constitutional right to trial by jury of questions arising as to his competency. Matter of Perkins (1919), 105 Misc. 534, 173 N. Y. Supp. 520.

Trial by jury in surrogates court may be had only of issues which by constitutional provision were formerly triable by jury. Matter of White (1917), 100 Misc. 56, 166 N. Y. Supp. 158.

An executor has no constitutional right of trial by jury of the issues in a proceeding brought by an attorney in the Surrogate's Court to ascertain the value of services rendered by him to the executor for the benefit of the estate. Matter of Griffith (1918), 103 Misc. 562, 170 N. Y. Supp. 629.

The right to a jury trial upon proceedings for the probate of a will should be demanded at the time of the filing of objections. Where contestants do not make such demand until an adjourned date, when they appear and ask permission to file amended objections, which are in precisely the language of the original objections, with an addition thereto of a demand for trial by jury, they will be deemed to have waived their right thereto. Matter of Carnwright (1917), 180 App. Div. 21, 167 N. Y. Supp. 438.

Section cited.—Matter of Blanc v. N. Y. C. R. R. Co. (1919), 226 N. Y. 586, 123 N. E. 856; Matter of Vaughn v. Clare Knitting Co. (1919), 226 N. Y. 586, 123 N. E. 893.

1 VOL. X-1

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Art. I, § 3. Freedom of worship; religious liberty.

Applieation.-The State may not interfere with the religious beliefs and opin. ions of a citizen, but it may prohibit acts and practices which are deemed to be detrimental to the community. Subdivision 3 of section 899 of the Code of Criminal Procedure is not unconstitutional upon the ground that it deprives one who pretends to tell fortunes of the exercise and enjoyment of her religion, profession and worship. People v. Ashley (1918), 184 App. Div. 520, 172 N. Y. Supp. 282.

Where a school teacher was not dismissed because she was a Quakeress but simply because of her views and belief which she declares are based upon her religion, a contention that her dismissal was in violation of the federal and state Constitutions in that she was discriminated against on account of her religion and that there was an attempted restraint upon the observance of the Quaker faith is untenable. Matter of McDowell v. Board of Education (1918), 104 Misc. 564, 172 N. Y. Supp. 590.

Art. I, § 6. Bill of rights.

Right to trial before duly constituted court.-When a person is brought before a court not duly constituted, he has the right to demand that he shall not be tried by such court. People ex rel. Childs v. Extraordinary Trial Term (1918), 184 App. Div. 829, 171 N. Y. Supp. 922.

Twice put in jeopardy-Where two indictments were found against a defendant, one charging him with the crime of robbery in the first degree as a second offense, and the second with an attempt to commit robbery in the first degree as a second offense on another person, and he was acquitted on a trial of the first indictment, his plea of former jeopardy upon a subsequent trial on the second indictment was not good for he could not under the first indictment have been convicted of the crime charged in the second indictment. People v. Rodgers (1918), 184 App. Div. 461, 171 N. Y. Supp. 451.

Where a first indictment for a violation of the first subdivision of section 889 of the Penal Law in aiding and abetting the falsification of the books of a copartnership it was dismissed upon the ground that there was no violation of said statute in that the change had been directed by a member of the firm, a subsequent indictment charging the defendant with a violation of the last paragraph of said section in causing the alteration of the partnership books with intent to defraud the creditors of said firm and to conceal from them and from other persons interested matters materially affecting the financial condition of the firm states an entirely different and independent crime. Hence, by the second indictment the defendant is not twice put in jeopardy for the same offense and his writ of habeas corpus will be dismissed. People ex rel. Fish v. Smith (1917), 177 App. Div. 152, 163 N. Y. Supp. 283, aff'd. 221 N. Y. 590.

A defendant, indicted for a violation of the first subdivision of section 889 of the Penal Law in aiding and abetting the falsification of partnership books, is not twice put in jeopardy for the same offense by being subsequently indicted for a violation of the last paragraph of said section in causing the alteration of the books with intent to defraud. People ex rel. Fish v. Smith (1917), 177 App. Div. 152, 163 N. Y. Supp. 283, aff'd. 221 N. Y. 590.

Witness against self in criminal case.-People v. Cascia (1920), 191 App. Div. 376, 181 N. Y. Supp. 855.

Ordinance held not to compel dealers in patent medicines to give evidence against themselves in violation of this section. Fongera & Co. v. City of New York (1918), 224 N. Y. 269, 120 N. E. 642, affg. 178 App. Div. 824, 166 N. Y. Supp. 248.

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L. 1915, ch. 579, § 4, as amended by L. 1916, ch. 287, authorizing the taking of the finger prints of the defendant in a criminal action as a means of identification, and their reception in evidence upon the testimony of a competent witness whose qualification as an expert is not questioned, is not violative of the provision of the Constitution that no person shall be compelled in any criminal case to be a witness against himself. People v. Sallow (1917), 100 Misc. 447, 165 N. Y. Supp. 915.

A proceeding for disbarment is not a “criminal case," within the meaning of the provision that no person "shall be compelled in any criminal case to be a witness against himself.” Matter of Rouss (1917), 221 N. Y. 81, 116 N. E. 782, affg. 169 App. Div. 629, 155 N. Y. Supp. 557.

Due process of law.—People v. Newman (1919), 109 Misc. 622.

An order of the Public Service Commission requiring a railroad company to operate additional cars within certain dates, granted after a fair hearing with full opportunity to submit proofs, is not a taking of property without due process of law. Brooklyn Heights R. R. Co. v. Straus (1917), 245 Fed. 132.

The streets and highways when owned by a State or municipality are, with respect to the United States, private property of which they could not be deprived except by due process of law, and upon a just compensation. People ex rel. Postal Telegraph-Cable Co. v. State Board of Tax Commissioners (1918), 181 App. Div. 777, 169 N. Y. Supp. 139.

The enforcement of a lien for water measured by a meter in favor of the city of New York, pursuant to the provisions of the charter, where the tenant fails to pay, does not deprive the owner of property without due process of law. Dunbar v. City of New York (1917), 177 App. Div. 647, 164 N. Y. Supp. 519, aff'd. 223 N. Y. 597.

Section 48 of the Municipal Court Code relating to the service of the summons and complaint and other papers in an attachment suit immediately upon the making of the inventory, in so far as it does not provide for notice to the defendant but permits judgment to be entered against a nonresident upon the mere service of process upon the person in whose possession the property attached is found, violates the “due process" clause of the Constitution of the United States and of the Constitution of the state of New York. Nerenberg v. Keith (1917), 101 Misc. 551, 167 N. Y. Supp. 612.

L. 1915, ch. 666, requiring the International Bridge Company to erect roadways for pedestrians and vehicles on its bridge across the Niagara river, and imposing penalties if it failed to comply with the requirement is valid. People v. International Bridge Co. (1918), 223 N. Y. 137, 119 N. E. 351, affg. 179 App. Div. 950, 165 N. Y. Supp. 1104.

To hold that the lawful owner of goods cannot take them by judicial process because at the time they happen to be under Federal control, merely for transportation for hire, would violate the constitutional provision that no person shall be deprived of his property without due process of law. Salant v. Pennsylvania R. R. Co. (1919), 188 App. Div. 851, 177 N. Y. Supp. 475.

Seizure of books, papers, etc., without search warrant, from apartment of defendant charged with violation of section 986 of the Penal Law, and introduction of same in evidence. People v. Sieke (1918), 222 N. Y. 611, 118 N. E. 1073, affg. 181 App. Div. 889, 167 N. Y. Supp. 1120.

Order No. 31 of the board of health of the city of Albany, which provides that no milk dealer shall sell loose or dipped milk in the city of Albany after April 1, 1917, is constitutional, and in an action brought to determine the validity of said order an injunction pendente lite will be denied. Mannix v. Frost (1917), 100 Misc. 36, 164 N. Y. Supp. 1050, affd. 181 App. Div. 461, 168 N. Y. Supp. 1118.

Section 221-b of the Tax Law imposing a penalty for nonpayment of the stamp tax to be levied and collected as a transfer tax is not in violation of the consti

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tutional guarantees of due process of law, and the equal protection of the law. Matter of Watson (1919), 226 N. Y. 384, 123 N. E. 758, revg. 186 App. Div. 48, 174 N. Y. Supp. 19.

To permit a boarding housekeeper to have a lien on chattels which though brought on the premises by a boarder are owned by a third person constitutes the taking of property of said third person without due process of law. Van Laar v. Marchesini (1919), 107 Misc. 186, 175 N. Y. Supp. 456.

The Township School Law, now repealed, did not violate the due process provision of this section. Wadsworth v. Menzie (1919), 105 Misc. 697, 173 N. Y. Supp. 620.

The statute (Laws of 1900, chap. 710, amending Laws of 1893, chap. 102) which restricts the use of the “Harlem River Driveway," commonly known as the “Speedway," to the driving thereon of horses attached to light carriages does not violate constitutional rights and an ordinance founded upon said statute is valid. Strauss V. Enright (1918), 105 Misc. 367, 174 N. Y. Supp. 113.

Validity of statute fixing price of gas. Kings County Lighting Co. v. Lewis (1920), 110 Misc. 204.

Liquor Tax Law, section 30, subdivision P, does not deprive a person of liberty and property without due process of law. People v. Willi (1919), 109 Misc. 79, 179 N. Y. Supp. 542.

Eminent domain.-County of Orange v. Storm King Stone Co. (1917), 180 App. Div. 208, 213, 167 N. Y. Supp. 806, citing section in dissenting opinion.

"The right of eminent domain is an attribute of sovereignty which requires no constitutional recognition and is unrestricted except by constitutional limitations. It springs from the necessities of government. But the necessity extends to the taking only. The state may well exist without the power to abandon what it has taken without making just compensation. The obligation to reimburse rests upon the constitutional right of the individual. When the state solemnly appropriates the property of the citizen for a great public need without paying compensation in advance, it is not contemplated that it will say that it has noť taken the property; that it no longer needs it; that the owner must take it back because he has no vested right to compensation." Kahlen v. State (1918), 223 N. Y. 383, 391, 119 N. E. 883, revg. 181 App. Div. 961, 168 N. Y. Supp. 1113.

While section 50 of the charter of the city of New York relating to municipal powers may authorize the city to appropriate a portion of a street for access to a public bath so that such structure will not constitute a public nuisance, it cannot deprive an adjoining landowner of easements in light, air and access without just compensation, for such property rights are within the protection of the provisions of the Constitution relating to the exercise of eminent domain. Hellinger v. City of New York (1917), 181 App. Div. 254, 168 N. Y. Supp. 271.

Just compensation is reasonable and adequate compensation and the equivalent for the actual loss that the owner sustains by reason of the public taking his private property. Private property cannot be taken for public use without "just compensation." County of Erie v. Findenberg (1917), 221 N. Y. 389, modfg. 176 App. Div. 949, 162 N. Y. Supp. 1115.

The limitation that private property shall not be taken for public use without just compensation does not deny the power of the state to take to itself for its own public use the absolute title to specific private property, provided the statute recognizes the absolute right of the owner, upon the taking of the property, to just compensation and makes provision for the prompt determination and payment of such compensation from the public funds. No other limitations are placed upon the right to take. Compensation is not a condition precedent to a valid appropriation. Kahlen v. State (1918), 223 N. Y. 383, 389, 119 N. E. 883, revg. 181 App. Div. 961, 168 N. Y. Supp. 1113.

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