People ex rel. Sherrill v. Guggenheimer

Teuax, J.

This is a motion by four members of the city council to compel the attorney for the relators to accept service of a notice of appeal, served on behalf of said members, from an order 'made at Special Term, directing that a peremptory writ of mandamus issue to them and their colleagues, members of the council, compelling them to vote for an issue of bonds to acquire the plant of the Long Island Water Supply Company, and awarding fifty dollars costs against the four parties mentioned personally. The four persons against whom the writ had issued and against whom costs have been awarded, desiring to appeal from the order awarding the peremptory writ of mandamus and costs, served a notice of appeal therefrom upon the attorney for the relators, who returned said notice upon the ground “ that the said persons have no right to appear by private counsel and that no one has authority to appear for the Council of the City of ¡New York except the Corporation Counsel.” I am of the opinion that the motion to compel the attorney for the relators to receive the notice of appeal should be granted. It may be that the original application for a writ of mandamus was directed to the council as a board, and not to the individual members of the council, and that the board should appear by the corporation counsel, but the order that was made is against the individuals composing the council as well as against the council as a board, and it awards fifty dollars costs against the individuals who desire to appeal from the order. They have the legal right to appeal, because, as members of the board they are, in a legal sense, aggrieved by the decision from which they seek to appeal (People ex rel. Burnham v. Jones, 110 N. Y. 511), and also because costs have been awarded against them as individuals. The fact that the corporation counsel, as attorney for the board, does not desire to appeal from the order is no reason why the individuals, who are aggrieved by the order, should not have the right of such an appeal. The order affects them personally, and they have the right to employ counsel to defend them, and are not bound to accept the services of a counsel who declines to defend them. Section 1995 of the Code of Civil Procedure provides that a party to a special proceeding instituted by State writ may appear by attorney with like effect as in an action brought in the Supreme Court; while section 55 of the Code provides that a party to a civil action, who is of full age, may prosecute or defend the same in person or by attorney. To make the defendants appear' by an attorney, who will not defend them, is to make this section of the Code inoperative as against them. This proceeding affects the property of the defendants. It may affect their liberty, and the Constitution of this State provides that no man shall be deprived of his liberty or property without due process of law. One of the things of which he shall not be deprived is the right to defend himself by counsel of his own choosing. Motion is granted, with ten dollars costs to abide event of the appeal.

Motion granted, with ten dollars costs to abide event.