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In re Maxwell

38 N.Y. St. Rep. 479 Court N.Y. Gen. Term Decision date 1891-05-21 English

Delivered by Learned, P. J.

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p. 479
In the Matter of the Application of John S. Maxwell for Admission as an Attorney.
(Supreme Court, General Term, Third Department,
Filed May 21, 1891.)

Headnote

Attorneys—Admission op.
The rules of the court of appeals relative to the admission of attorneys are not invalid because they have not been published in the session laws and a copy filed in the office of the clerk of each county as required by Code Civ. Pro., § 57. The requirements of said section are directory-only.
Application for admission as an attorney.
John S. Maxwell, for motion.

Mr. Maxwell has been examined at this term and has shown himself to be qualified. The only difficulty is that he had not passed the regents’ examination as prescribed by rules 2 and 4 of the court of appeals respecting admission of attorneys and counsellors.

That court has held the filing of proof of such examination mandatory, and has refused to file such proof nunc pro tunc. Matter of Moore, 108 N. Y., 280 ; 13 N. Y. State Rep., 621.

We are now asked to admit Mr. Maxwell on the ground that those rules are invalid, because they have not been published in the session laws and a copy has not been filed in the office of the clerk of Montgomery county, as required by § 57.

Section 18 declares that a general rule of the court of appeals does not take effect until it has been published in the state paper for three weeks. But there is no similar provision in § 57. Therefore we think that the requirements of that section are only directory. If they were mandatory, a rule might be adopted, say in July, which could not take effect for nearly a year, since the next ensuing volume of the session laws might not be issued for a year afterwards.

p. 480
The counsel refers us to Petition of Douglass, 46 N. Y., 42 . But in that case the common council was prohibited from passing certain resolutions until after certain publication in newspapers. That was a very different provision from that contained in § 57 of the Code.

We must deny the application.

Landon and Mayham, JJ., concur.