Newburger v. Campbell — 9 Daly (N.Y.) 102

Majority

p. 102

Meyer Newburger, et al., Respondents, against James Campbell, Appellant.

(Decided March 3d, 1880.)

Headnote

Where, upon the trial of an action in a district court in the city of New York, the justice permits a person not admitted to practice as an attorney and counselor to appear for and conduct the trial on the part of one of the parties, notwithstanding the objection of the other party, the judgment rendered upon a trial so conducted in violation of law is void, and, on appeal by the party objecting, must be reversed.

Appeal from a judgment of the district court in the city of blew York for the seventh judicial district.

The action was brought to recover the price of goods sold and delivered. On the return, both parties appeared by attorney. At the trial, Mr. Arthur Furber, the managing clerk of plaintiff’s attorney, conducted the cause for the plaintiffs.

p. 103

Having offered himself as a witness in rebuttal, to prove an interview with the defendant, he was asked, on cross-examination, if he was an attorney and counselor at law, and said he was not. On his subsequently beginning to cross-examine one of defendant’s witnesses, defendant’s counsel objected on the ground that he was not duly qualified to appear. Notwithstanding the objection, the justice permitted Mr. Furber to conduct the case to the end. The jury found a verdict for plaintiffs, and judgment for the plaintiffs was entered on the verdict. From the judgment the defendant appealed to this court.

Mr. Jerolamon, for appellant.

Mr. Van Winkle, for respondents.

The notice of appeal recites as a ground of appeal that the justice permitted the cause to be tried upon the part of the plaintiffs by a gentleman who was not an attorney and counselor at law; and it appears, from the return, that the objection was duly made by the defendant’s counsel, as soon as it was disclosed, by the evidence of Mr. Furber (the gentleman in question), that he was not duly admitted to practice. The justice, nevertheless, permitted him to go on and try the case to the end, contrary to the provision of the Code, sections 63 and 64. As it is declared by the latter section to be a misdemeanor for .the judge to knowingly permit to practice, in his court, a person not regularly admitted to practice, we are of opinion that his judgment, rendered in a cause so conducted, in violation of law, is void, and must be reversed.

After it appeared that Mr. Furber was not an attorney, the justice committed a misdemeanor in permitting him to continue longer to conduct the case for the plaintiffs. That misdemeanor necessarily affected the subsequent proceedings. To say that because the justice might be indicted for permitting Mr. Furber to continue in the trial, the defendant cannot complain of the misdemeanor, is to say that a suitor cannot object that a judgment against him was ren

p. 104

dered by proceedings which violated a statute of the State, if those proceedings constitute an indictable offense.

Charles P. Daly, Ch. J., concurred.

Judgment reversed.