People ex rel. Bernstein v. La Fetra , 157 N.Y.S. 386 ( 1916 )

Scott, J.:

The relator is an attorney at law practicing in the city of New York. The respondent is a justice of the City Court of that city. The alleged contempt of which the relator was adjudged to be guilty occurred in the presence of the court on January 25, 1915, during the trial of an action entitled H. G. Vogel Company v. George N. Reinhardt, wherein relator was attorney and trial counsel for the plaintiff. The charge of contempt is predicated upon the remarks and the conduct of relator during the progress of the trial, and for the alleged contempt he was, at the close of the trial, sentenced to pay a fine of fifty dollars and to stand committed until such fine should be paid. The matter comes before this court upon the petition, the writ of certiorari and the return. As is the rule in such cases the return is accepted as true, and the questions at issue are to be determined upon that- assumption, for we are not at liberty to look behind the return and to consider the facts stated in the petition and accompanying papers except such facts as to which an admission, or what is equivalent to an admission, is contained in' the return. (People ex rel. Miller v. Wurster, 149 N. Y. 549; People ex rel. Lester v. Eno, 176 id. 513.)

In the present case the relator has attached to his petition the stenographer’s minutes of the trial referred to, as to which the return states: “This printed copy [of the minutes] is" correct so far as it goes, but it does not contain all the colloquy between the respondent and counsel, and omits many things which took place which are material to the issue in this proceeding. The matters which the said transcript does not contain and which are material to this proceeding are hereinafter set forth.” We are, therefore, at liberty, within the rule above stated, to consider the stenographer’s minutes as corrected by the return as a true history of what took place on the trial.

The action was for damages for the refusal of defendant to carry out a contract, and there developed early in the trial and continued throughout a radical difference of opinion between the views entertained by relator and those entertained by respondent as to the damages provable under the pleadings. An adherence by respondent to his views upon that subject would inevitably lead, as in the end it did, to a dismissal of the complaint, and the only hope that relator could entertain of ultimately succeeding in the action was to make the appropriate objections and take the necessary exceptions to preserve his client’s rights upon an appeal. In' doing this he was clearly within his rights, provided he comported himself with due regard to the dignity and authority of the tribunal before which he was appearing.

The order of commitment, which we are now called upon to review, finds generally that relator was guilty of having acted throughout the trial in an insolent, discourteous, disorderly and contemptuous manner, without specifying the precise manifestations of such manner, and also recites specifically an occurrence which took place at one stage of the trial, and which appears to be the particular act of contempt which led the respondent to act as he did in issuing the commitment.

The general allegation of discourteous and contemptuous acts read as follows: “ One David Bernstein, an attorney, duly admitted to practice in the State of New York, and appearing on behalf of said plaintiff, did, during the sitting, and in the immediate view, presence and hearing of the said Court, and while the said Court was so engaged as aforesaid, contemptuously, insolently and in a disorderly maimer, so behave and conduct himself as to directly tend to interrupt its proceedings, and which said conduct and behavior did interrupt the proceedings of said Court, and impair the respect due to its authority by insolently, discourteously, disorderly and contemptuously, during the course thereof, [disregarding] the rulings and directions of the Court in respect to the conduct of the said trial, and,

“Whereas, the Court had repeatedly ruled under objections and exceptions that within the pleadings, the evidence adduced and the election of the defendant at the trial, one of the questions at issue was the value of the materials, labor and services furnished by the plaintiff to the defendant in the installation of a fire preventive water sprinkling system in a certain building in the City of New York, and not the value of material in their damaged condition claimed to have been furnished and damaged by water or fire while upon the premises of the defendant, and

“Whereas, the said David Bernstein repeatedly disregarded the Court’s several rulings thereon, and compelled it to admonish and caution him that he was directly, indirectly and adversely criticising the same by propounding questions upon an issue already decided adversely to the defendant; that he was delaying, impairing and impeding the orderly disposition of the trial, although plaintiff’s interests had been amply protected by numerous exceptions, and

“ Whereas, the Court thereupon warned the said David Bernstein to refrain from further propounding questions as to the value of the goods in their claimed damaged condition on account of the fire, and that it would later consider his insolent, discourteous, disorderly and contemptuous conduct.”

The relator urges, and such seems to he the law, that the foregoing statements of his misconduct are insufficient to justify his punishment for a criminal contempt. Section 752 of the Judiciary Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35), which was formerly section 11 of the Code of Civil Procedure, provides that in the case of such a contempt “the particular circumstances of his offense must be set forth in the mandate of commitment.” The history of and the reason for this rule are fully set forth in People ex rel. Barnes v. Court of Sessions (147 N. Y. 290, 296, 297. See, also, Roncoroni v. Gross, 92 App. Div. 366; People ex rel. Palmieri v. Marean, 86 id. 278). In the last case cited the final order much resembled the one now under review so far as concerns that portion which we are now considering. It recited that the relator in that proceeding “ in the immediate view and presence of the court, behaved in an insolent and disorderly manner which tended to interrupt the proceedings of the court and impair the respect due to its authority.” The Appellate Division in the Second Department, speaking through the present chief judge of the Court of Appeals, felt constrained, though with evident reluctance, to hold that this was an insufficient statement of the particular circumstances of the relator’s offense and fatal to the commitment upon review, notwithstanding the papers before the reviewing tribunal might amply and clearly establish the sufficiency of the proof to sustain the conviction of the relator. Upon the authority of those cases we feel constrained to hold that the recitation in general terms of the relator’s misconduct, as stated in that portion of the commitment above quoted, was insufficient to justify his punishment.

The specific charge of misconduct upon which the commitment must rest, if it is to be upheld, is thus set forth in the mandate:

“ Whereas, later, during the examination of one Philip M. Betts, a witness called in behalf of the plaintiff, a paper or waybill of the New York Central & Hudson E. E. Co. was read in evidence and marked Defendant’s Exhibit A, and, upon consent, read into the record, and

“ Whereas, the following questions were propounded by the said David Bernstein and proceedings had: ‘ By Mr. Bernstein. Q. From that paper it appears to have arrived in good condition ? [Objected to as a conclusion. Objection sustained.] Q. Does it appear whether it was in good or bad condition ? [Same objection. Sustained.] ’

“ And, Whereas, said David Bernstein thereupon charged Mr. Taylor, counsel for the defendant, with having wilfully refrained from reading Exhibit A to the jury, and omitting therefrom certain portions thereof in relation to the condition of material, whereupon the following proceeding was had: ‘ The Court: Bead anything you wish to that is not on the record. Mr. Bernstein: Let it appear on record, from the paper in evidence, Defendant’s Exhibit A, it does not appear that this material arrived in bad condition. Mr. Taylor: Object to that as highly improper. The Court: Do you think that is fair ? Do you think you have complied with the Court’s instructions ? Mr. Bernstein: I think I have. The Court: Don’t ever do that again in this Court while practicing before me. Glo on with the case. Mr. Bernstein: I except to the Court’s remarks on the ground that I think I have complied with the Court’s instruction. The Court: If there is anything you want to read from the paper, Exhibit A, read it. Mr. Bernstein: That is all.’

“ And, Whereas, his attitude and demeanor were insolent, overbearing, discourteous, disorderly and contemptuous.

“And, Whereas, said Exhibit A was silent upon the condition of the articles mentioned in Exhibit A, and

“ Whereas, the Court charged the said David Bernstein with criminal contempt of court, in that he had disregarded the Court’s ruling, had not proceeded in the regular or orderly way, had not abided by its rulings and exceptions thereto, but had repeatedly reiterated questions and arguments without leave therefrom, and that his attitude and demeanor during the trial had indicated a want of respect, and requested said David Bernstein to apologize for his contemptuous conduct, and “Whereas, instead of apologizing, he admitted the purpose of his actions and questions were to make it appear to the jury there was nothing in Exhibit A showing one way or the other whether the property arrived in good or bad condition.”

Before discussing this charge of misconduct it is necessary to state briefly how the question arose. Plaintiff had contracted to furnish a sprinkling system to a building owned by defendant. After some of the material had been delivered, but not put in place, a fire occurred in the building the work of installation was suspended and plaintiff retook the materials which it had delivered. Eelator’s theory of the case was that plaintiff was entitled to recover the damages which had been done to the materials in consequence of the fire. Eespondent took the view that, under the pleadings, all that plaintiff was entitled to recover was the actual value of the materials, labor and services furnished by the plaintiff to defendant in the installation of the sprinkling system, irrespective of any damage to such materials caused by the fire. To uphold his theory of the case relator deemed it necessary to show the condition of the materials when delivered and their condition when retaken, and many of the objections and exceptions found in the stenographer’s minutes arose from his ineffectual efforts to make such proof. A portion of the material had been delivered by the New York Central and Hudson River Railroad Company, and relator’s effort was to show, first, that the waybill contained no note that the goods had been delivered in other than good condition, and, second, that if the goods had been in other than good condition the waybill would have contained a note to that effect.

We feel bound to say that with regard to the particular incident recited in the commitment and quoted above we are unable to discover that the relator was either contemptuous or discourteous, and there is especially lacking any indication of that intent to defy the dignity and authority of the court which is a necessary element of a criminal contempt. As the waybill itself was to be taken out of court so that it would not be available for exhibition to the jury when the time came to sum up the case, the relator was entitled to have on the record as well what it did not contain, as what it did, if the fact could in any view of the case have been relevant.

We recognize very fully the annoyance to which the courts are sometimes put by the contemptuous, recalcitrant and disorderly conduct of attorneys in the trial of cases, and which is frequently expressed rather by the manner of the attorneys, than by their spoken words which can he reproduced upon the record. We must, however, accept the law and the facts as we find them, and, so doing, are constrained to hold that the recitation of relator’s misconduct as contained in the order brought up for review does not sustain it.

The writ is, therefore, sustained and the order of commitment reversed, without costs.

Claree, P. J., McLaughlin and Page, JJ., concurred; Laughlin, J., dissented.