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AMENDMENTS TO CONSOLIDATED LAWS, CODE OF CIVIL PROCEDURE,
LEGISLATURE OF 1916
DECISIONS OF THE COURTS AND RULINGS OF THE ATTORNEY GENERAL
AND STATE OFFICERS AND COMMISSIONS UNDER THE LAWS
AND CONSTTTUTION FROM JULY 1, 1915, TO JULY 1, 1916
[Decisions include those reported during such year down to 241 U. S. 201;
N. Y. Supp. 623, and 7 State Dept. Rep. Adv. Sheet No. 42]
CLARENCE F. BIRDSEYE, ROBERT C. CUMMING
AND FRANK B. GILBERT
THE BANKS LAW PUBLISHING COMPANY
BAKER, VOORHIS & CO.
ALBANY, N. Y.
APR 2 2 1940
Copyright, 1916, by
BAKER, VOORHIS & Co. MATTHEW BENDER & Co., INCORPORATED
Art. I, § 2. Trial by jury.
Exclusion of jury from court room.-A contention that reversible error was committed in excluding the jury from the court room during the argument as to the admissibility of an alleged dying declaration-their exclusion being a violation of the right to a trial by jury guaranteed by the Constitution of the state cannot be upheld, where the argument related solely to a question of law, determinable by the trial judge, and with which the jury had no concern whatever. While it is never error to permit the jury to be present during the discussion of questions of law by counsel, it was not error to exclude the jury under the circumstances of the present case. People v. Becker (1915), 215 N. Y. 126.
Art. 1, § 6. Bill of rights.
In jeopardy second time; trial on another indictment after due agreement.--A defendant who has been tried under an indictment resulting in a disagreement of the jury is not placed in jeopardy a second time by the trial of another indictment for the same offense. People ex rel. Bullock v. Hayes (1915), 215 N. Y. 172.
Witness against self in criminal case. The compulsory attendance of one accused of crime as a witness in a proceeding wherein the charge is being investigated, not simply the administering an oath, violates his constitutional rights irrespective of whether he is called before a coroner, a committing magistrate or a grand jury. People v. Ferola (1915), 215 N. Y. 285.
Art. I, § 19. Workmen's compensation. Procedure of Workmen's Compensation Commission; presumption as to claims. The fact that the Legislature adopts a peculiar and unusual practice in proceedings before the commission is not an objection to their validity, nor is the provision that a claim shall be presumed to come within the provisions of the act, in the absence of substantial evidence to the contrary, unconstitutional. McQueeney v. Sutphen & Myer (1915), 167 App. Div. 528, 153 N. Y. Supp. 554.
See generally, Herkey v. Agar Manufacturing Co. (1915), 90 Misc. 457, 153 N. Y. Supp. 369 and cases cited under Workmen's Compensation Law, post.
Art. III, § 18. Private and local bills; when not to be passed. Grant of privilege to construct and maintain railroad.-The Constitution was intended to prohibit the enactment of special legislation which had for its primary and fundamental purpose the grant of privileges to construct and maintain railroads and tracks, and to compel the acquisition of such rights under general and uniform statutes. McCutcheon v. Terminal Station Commission (1916), 217 N. Y. 127, 157.
Contract permitting additional pieces of track to be laid held not to contravene this section. MeCutcheon v. Terminal Station Commission (1916), 217 N. Y. 127, 157.
Art. V, § 9. Civil Service appointments and promotions. Whether a position shall remain classified as competitive depends upon the prao ticability of ascertaining merit and fitness by examination. Atty. Gen'l. Opin. (1915), 4 State Dep. Rep. 567.
Art. VI, § 9. Jurisdiction of court of appeals.
Art. VI, § 14. County courts. Jurisdiction; test of jurisdiction; failure to raise objection before judgment.Where a complaint states two causes of action, one for wages alleged to have been earned by the plaintiff, and another for damages for a breach of a written contract of employment, and the demand for judgment is "for the sum of two thousand dollars upon both causes of action, with interest, besides the costs and disbursements of the action," the County Court has no jurisdiction. The test of jurisdiction is not the sum recoverable in the action, but the sum demanded in the complaint. The fact that the objection to the jurisdiction of the court was not raised before judgment, does not estop the defendant from raising it upon appeal. Halpern v. Langrock Bros. Co. (1915), 169 App. Div. 464, 155 N. Y. Supp. 167.
Art. VI, § 17. Justices of the peace; district court justices.
Power to remove municipal court justices.—The Municipal Court Code deprives the Supreme Court of the power of removal of the justices of the Municipal Court of the city of New York which it possesses under section 17 of article VI of the Constitution over justices of inferior courts not of record and vests it in the Senate to be exercised in the manner provided by section 11 of article VI of the Constitution. The legislature having power to constitute the Municipal Court of the city of New York a court of record it must be implied that the change effected by the Municipal Court Code legally carries with it a change in regard to the power of removal of the justices of said court as heretofore governed by section 17 of article VI of the Constitution; such construction reconciles the statute and the Constitution. Scheidlinger v. Silber (1916), 94 Misc. 322, 158 N. Y. Supp. 27.
Art. VI, § 18. Inferior local courts.
The Municipal Court Code, which constitutes the Municipal Court of the city of New York a court of record, is not violative of the inhibition of section 18 of article VI of the Constitution of 1894 that "No inferior court hereafter created shall be a court of record.” Scheidlinger v. Silber (1916), 94 Misc. 322, 158 N. Y. Supp. 27.
The provision of section 6 (1) of the Municipal Court Code (Laws of 1915, chap. 279), which attempts to confer upon the Municipal Court of the city of New York jurisdiction in an action "to take, state and determine an account between partners after dissolution or other termination of their partnership relation, and to render judgment for the amount so found to be due, but in no event for more than one thousand dollars," is violative of article VI, section 18, of the State Constitution which declares that “The Legislature shall not hereafter confer upon any inferior or local court of its creation any equity jurisdiction or any greater jurisdiction in other respects than is conferred upon County Courts by or under this article.” Schmitt v. Querengaesser (1916), 94 Misc. 640, 158 N. Y. Supp. 575.
Art. VI, § 23. Courts of special sessions.
L. 1913, ch. 801, amending the Barge Canal Act (L. 1903, ch. 147), making private bridges and their franchises subject to condemnation is unconstitutional. Halfmoon Bridge Co. v. Canal Board (1915), 91 Misc. 600, 155 N. Y. Supp. 602.
Art. VIII, 3. Corporation; definition of term.
United States Express Company.-It seems, that under this section and the Joint Stock Associations Law, the United States Express Company is, for all practical
Indebtedness; home rule. Art. VIII, $ 10; Art. X, $ 2.
purposes, a corporation. So held in an action under the United States Corporation Tax Law. Roberts y. Anderson (1915), 226 Fed. 7.
Art. VIII, § 10. Limitation of indebtedness of counties, cities, towns
ns and villages.
When objection as to excessive indebtedness, is prematurely raised. By express mandate of the Constitution the question whether a city has become indebted in excess of the prescribed percentage is to be determined by reference to the assessment rolls of said city on the last assessment for state or county taxes prior to the incurring of such indebtedness. Where there has never been any assessment rolls of a city, an objection that its charter is unconstitutional in that the indebtedness of the proposed city exceeds ten percentum of the assessed valuation of the real estate therein subject to taxation, is prematurely raised. People ex rel. Haight v. Brown (1915), 216 N. Y. 674.
Liability of city for bonded debts of towns and villages composing it. Although this section of the Constitution provides that no county or city shall be allowed to become indebted in excess of ten per centum of the assessed valuation of its real estate, which constitutional limitation does not obtain in the case of villages, the Legislature, in authorizing a village to merge with certain towns and become a city, may provide that the new city shall be liable for the bonded debts of the former towns and village which compose it, although the aggregate thereof exceeds the constitutional limitations placed on cities. After the merger the constitutional prohibition is only effective to prevent the creation of new, indebtedness beyond the percentage prescribed. People ex rel. Haight v. Brown (1915), 169 App. Div. 695, 155 N. Y. Supp. 564, affd. 216 N. Y. 674.'
Gift by city in aid of individual; repayment of counsel fees expended by employee in proceeding to retain position. By virtue of the Home Rule Act of 1913 (chapter 247, § 20, subd. 5), which empowers every city in the state to pay and compromise claims “equitably payable by the city, though not constituting obligations legally binding on it,” the amount of counsel fees and disbursements incurred by the auditor of the city of Buffalo, a veteran of the Spanish-American war, in an unsuccessful mandamus proceeding instituted to compel his continuance in said office to which he had been appointed and to test the right to remove him therefrom, may properly be repaid by the city, and such payment does not violate the constitutional provision (Art. VIII, & 10) that no city shall give any money or property in aid of any individual nor incur any indebtedness except for city purposes. Matter of Christey (1915), 92 Misc. 1, 155 N. Y. Supp. 39.
Gift by city to railroad. McCutcheon V. Terminal Station Commission (1915), 168 App. Div. 301, 154 N. Y. Supp. 711.
Art. X, $ 2. Appointment or election of officers, not provided for by constitution.
Home rule provision; rights of incorporated village; validity of provisions taking away right to access and levy taxes. This section embodies the home rule principle under which the right of self-government is secured to the localities of the state. It includes those rights of self-government which relate to the assessment and collection of taxes for village purposes which the villages enjoyed prior to the adoption of the present Constitution. Taxation for such a local purpose is the concern of the village rather than the town, county and state of which the village is an authorized subdivision, and within this limited local sphere the right to control the assessment and taxation of property for village purposes is a right which the village enjoys by virtue of the home rule provision of the Constitution. While the legislature has power to provide for the organization of cities and incorporated villages and to restrict their power of taxation, assessment, borrowing