Hyperlawhypertext legal databasebeta In re McAdam 27 N.Y. St. Rep. 352

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In re McAdam

27 N.Y. St. Rep. 352 Court N.Y. Gen. Term Decision date 1889-11-07 English

Delivered by Van Brunt, P. J.

Contents

Majority

p. 352
In the Matter of Graham McAdam.
(Supreme Court, General Term, First Department,
Filed November 7, 1889.)

Headnote

1. Contempt—Witness—Code Crv. Peo., §§ 856, 857.
Sections 856, 857 of the Code, relating to the imprisonment of witnesses refusing to answer, do not require notice of the application therefor to be given or an order to be entered . The mere fact that notice was given, or an order to show cause granted, does not require the court or judge to enter an order directing the commitment to issue.
.3. Same.
The relevancy of the question cannot be determined by the appellate court unless the papers on which the commitment was granted are before it.
"8. Constitutional law—Laws 1884, chap. 516.
The title of chap. 516, Laws of. 1884, is sufficiently definite to answer all the requirements of the constitution.
4. Same—Code Civ. Peo., §§ 856, 857.
Sections 856, 857 of the Code do not violate the constitutional prohibition against depriving a person of life, liberty or property without due process of law.
Appeal from order denying motion to vacate commitment for -contempt.
Peter Mitchell, for app’lt; J. J. McKelvey, for resp’t.

In March, 1889, a commitment was issued by Justice Ingraham committing Mr. Graham McAdam to jail, there to remain until he should answer a question named in said commitment which had been propounded to him by the commissioners of accounts of the city of New York, or be discharged according to law. The grounds upon which the motion was made were that the proceedings to commit McAdam for contempt were initiated by an order to show cause, and, therefore, a decision evidenced by an order in writing was necessary. Upon the face of the commitment no such fact appears, and although upon the papers submitted it would seem that an order to show cause had been issued, yet there being no authority in law for any such proceeding, all that went before the signing of the commitment was a nullity. The commitment is issued apparently ex parte, under §§ 856, 857 of the Code. No notice whatever was required, and the mere fact that notice of the application was given, or an order to show cause granted, in no way impaired the right of the court to issue the commitment as though no such notice had been given. Therefore, the court was entirely right in refusing to ¡enter any order upon the return of the order to show cause, and ■such refusal in no way invalidated the commitment, because, as already said, the commitment appears to have been issued not by virtue of any order to show cause, but simply ex parte, as provided .and authorized by the Code.

It is to be seen that the commitment is to be issued by a judge of the court and not by the court, and therefore the entry of an order would simply amount to the justice directing himself to issue a warrant It is correctly claimed by the respondent that the application is entirely ex parte and does not require any notice what

p. 353
ever of the application to be given to the witness, and that the application must be made, not to the court, but to a judge who alone has power to commit the offender. Therefore, under §§ 856, 857, the correct practice was pursued, no notice was necessary and no order could be entered, and the commitment was issued in pursuance of these provisions of the Code. The claim that chap. 516 of the Laws of 1884 is unconstitutional cannot be sustained. Chap. 410 of the Laws of 1882 was virtually a charter of the city of New York. It was an act passed to consolidate into one act all the special and local acts by which the government of the city of New York was carried on and from which its various departments derived their powers and by which their rights were conferred.

Chap. 516 of the Laws of 1884 was simply an amendment of this charter, and its title was certainly more explicit than that of chap. 410 of the Laws of 1882. The title fairly represents the subject matter of the legislation contained in the chapter, and unless the legislation itself is to be set out in the title it was sufficiently definite to answer all the requirements of the constitution.

It is further urged that the sections of the code under which the warrant was issued are unconstitutional because in violation of that part of the constitution of the United States which provides that “ no person shall be deprived of life, liberty or property without due process of law.”

"Why reference should be made to the constitution of the United States it is difficult to imagine, when the same provision is found in the constitution of our own state, which would be much more applicable if any violation of its terms has occurred. It is claimed that because these sections do not require notice of the application, that, therefore, the offender is deprived of his liberty without due process of law. What is “due process of law” has not been clearly defined, but as the practice of summary commitments has prevailed ever since the Revised Statutes were adopted, and long before the adoption of the constitution to which reference has been made, such a procedure in the case of a witness has been recognized for a sufficient length of time to bring it within the category “ due process of law.” By the Revised Statutes, vol. 2, pt. 3, chap. 8, title 13, § 3, in cases of proceedings to punish disobedience to any rule or order requiring the payment of money, or of disobedience to any subpoena, it is expressly provided that no notice is necessary, and the warrant to commit may issue in the first instance. This has been the practice since then, and the provisions of the Code in question are in entire harmony with the previous legislation upon the same subject.

As to the relevancy of the question asked "we are unable to say that it was not relevant. The party moving to set aside the commitment has not shown its irrelevancy by bringing before the court the papers upon which the commitment was granted, or the other evidence which was taken in the proceeding.

Upon the papers before him the justice issuing the warrant has found the question to be relevant, and without those papers it is. impossible for us to say that his conclusion was erroneous.

p. 354
We are of the opinion, therefore, that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Daniels and Brady, JJ., concur.

Statutes and regulations cited