People ex rel. Breslin v. Lawrence — 13 N.Y. St. Rep. 108

Majority

p. 108

The People ex rel. James H. Breslin, Resp’t, v. Abraham R. Lawrence, Justice of the Supreme Court, Resp’t and App’lt.^[1] The People ex rel. Charles N. Vilas, Resp’t, v. Same, Resp’t and App’lt.

(Court of Appeals,

Filed January 17, 1888.)

Headnote

Appeal—Who can appeal under Code Crim. Pro, § 519—When appeal. SHOULD BE TAKEN PURSUANT TO CODE ClVIL PRO., § 3059.

The relator was arrested by virtue of a warrant issued by a police justice in the city of New York, charging the sale of wines and liquors on Sunday in violation of the statute, and after pleading not guilty, was upon habeas corpus before Judge Lawrence, remanded to custody. On application of the prisoner, the supreme court, at general term, allowed a writ of certiorari, ' ‘ directed to the Honorable Abraham R. Lawrence, a justice,” etc., requiring him to return to that court the record of the habeas corpus proceedings. He did so,and upon consideration had, the order of Justice Lawrence was reversed and the prisoner ordered to be discharged from custody. A notice was then served upon the relator’s attorney, signed “E. Henry Lacombe, counsel to the corporation/’ and stating that Abraham R. Lawrence, one of the justices of the supreme court, appeals to the court of appeals from the order of the general term, above described. Held, that Lawrence, J., in his judicial capacity did not have an interest in maintaining the order and that it did not affect any right peculiar to himself. That he could not appeal under Code Criminal ^Procedure, § 519. That the appeal should have been taken by the attorney-general or district-attorney pursuant to Code Civil Procedure, § 3,059. People ex rel., etc., v. Gilmore, 88 N. Y., 636 , distinguished.

Noah Davis, for app’lt; Robert G. Ingersoll, for resp’t.-

The relator was arrested by virtue of a warrant issued by a police justice in the city of New York, charging the sale of wines and liquors on Sunday in violation of the statute, and after pleading not guilty, was upon habeas corpus before Judge Lawrence, remanded to custody. On the application of the prisoner, the supreme court at general term, allowed a writ of certiorari, directed “to the Honorable Abraham R. Lawrence, a justice of the supreme court of the state of New York,” requiring him to return to that court the record of the habeas corpus proceedings. He did so, and upon consideration had, the order of Justice Lawrence was reversed and the prisoner ordered to be discharged from custody. A notice was then served upon the relator’s attorney, signed “E. Henry Lacombe, Counsel to the Corporation,” and stating that “Abraham R. Lawrence, one of the justices of the supreme court, appeals to the court of appeals from the order of the general term ” above described. The counsel in support of the appeal in this court also describe themselves as “ Counsel to the Corporation.”

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We have considered, the case with a desire to reach the question which lies at the bottom of the proceedings and by construing the excise act now in force, dispose of a matter of public importance; but the respondent meets the appeal not only on that point, but by very earnest argument insists that the appellant has misconceived the statute by which the jurisdiction of this court is regulated. The argument had not been successfully answered. The appellant claims that the appeal can stand upon the authority of section 519 of the Code of Criminal Procedure. This section declares that an appeal may be taken from the judgment of the supreme court in the following cases, and no other:

First. From a judgment affirming or reversing a judgment of conviction.

Second. From a judgment affirming or reversing a judgment for the defendant on a demurrer to the indictment, •or an order of the court arresting the judgment.

Third. From a final determination affecting the substantial Bight of a defendant.

The last subdivision is the one invoked as embracing the case before us. The appellant is Abraham R Lawrence, not as an individual, but in his judicial character as a “ justice of the supreme court.” He was styled defendant in the court below in that character only, and the object of the proceedings in the general term was to procure a reversal of an order made by him in his judicial capacity. We are unable to discover that he had an' interest in maintaining the order, or that it affects any right peculiar to himself. Nor can he be regarded, as the appellant claims, in the light of a representative of parties who may be really interested, and as such “represent the substantial right of all parties who prosecute or defend in his name.” We find no provision of law or practice which makes him a vicarious agent or officer. On the contrary, the Code of Civil Procedure (section 2059) vests that function in other officers by declaring that “an appeal from a final order discharging a prisoner committed upon a criminal accusation, or from the affirmance of such an order, may be taken in the name of the people by the attorney general or the district attorney.” This provision took the place of section 70, part 3, chapter 14, title 1, article 2, page 573, Revised Statutes, which made it the duty of the attorney general to prosecute a writ of error to the court for the correction of errors in case of the discharge by the supreme court of a prisoner from a commitment upon a criminal accusation. Hence the appellant is only not aggrieved; he is in no sense entitled to represent those, if any there are, who have cause to complain of the order mhde by the supreme court.

The learned counsel for the appellant cites in support, of

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the appeal, The People ex rel., etc., v. Gilmore ( 88 N. Y., 626 ). In that case, although the order was not reviewable on its merits, the appeal was entertained, because the court below had, without authority, imposed costs upon the relator, arid so much of it was reversed. In the case before us no costs were imposed by the supreme court, and neither in that, nor in the other cases also cited (Munsell's Case, 101 N., Y., 245 ; Lawrence Case, 56 id., 182), was the point now before us presented. Whether it could have been, it is unnecessary to inquire.

. The objection to the proceeding now before us relates to> matter of substance. We think it must prevail and the appeal be dismissed.

All concur.