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Hupfel v. Schœmig

34 N.Y. Super. Ct. 476 2 Jones & S. 476 Court N.Y. Super. Ct. Decision date 1872-05-13 English

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ANTON HUPFEL, Plaintiff and Respondent, v. ELIZA SCHŒMIG, Defendant and Appellant.

Headnote

The provision of the Code (subdivision 8, section 401), which requires a judge before whom any motion is made, to obtain, modify or set any order for an injunction, order of arrest, or warrant of attach•ment, to render and make known his decision on such motion within twenty days after the day the same was submitted to him for de
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cisión, is simply directory, and its non-observance furnishes no reason for vacating and setting aside his decision made after the twenty days had expired.
The following decisions declaring the provision of section 267 of the Code, that provides that the judge before whom a case is tried, must file his decision within twenty days, as merely directory, cited as authority in this case: O’Brien ®. Bowers, 4 Bom. 668; People ®. Dodge, 5 How. Pr. 47 ; Lewis ®. Jones, 13 Abb. Pr. 427 ; Stewart ®. Slater, 6 Due}', 83 and 102.
A party considering himself aggrieved by the delay of the judge (beyond the twenty days) in filing his decision, can by mandamus compel him to render and make known the same.
Before McCunn, Curtis and Sedgwick, JJ.
Decided May 13, 1872.
This is an appeal from an order, denying defendant’s motion to vacate an order of Justice Speeder, made and entered on December 19, 1871, continuing injunction of Justice McCueve, granted ex parte, June 6, 1871, on the ground that more than twenty days had elapsed between the time of submission of the motion to Justice Speeder to continue said injunction (August 34, 1871), and the time of the decision and order of said justice, continuing said injunction, and appointing a receiver.
C. C. Egan, of counsel for appellant.
I. The order made on December 19, 1871, was Justice Speeder’s decision of the motion submitted on August 34, 1871, (Bently v. Jones, 4 How. Pr. 435 ; King v. Stafford, 5 Id. 30 ; Howard v. Freedman, 6 Robt. 511), and could not then be legally made, especially after defendant’s protest (Code, § 401, subd. 8.)
II. The act required to be done is not permissive, but is prescribed as a duty, and must be obeyed (Sedgwick on Interpretation of Statutes, 366, 377, 380, citing Vattel; Rules 1, 6, 7, also quoting at p. 384; Domat's
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Rules, § 7). The words are clear, plain, unambiguous and imperative, showing the intent of the legislature (which is' to govern); and require (in such case) no construction (Sedgwick on Interpretation, 266, 277, 287, setting forth Vattel’s Rules, § 16, and rules following ; also Domat's Loix Civile [at page of Sedgw. 283-4] §§ 4, 12, 13; see also Sedgw. p. 378, 379 and note 490 and 491; Mewell v. People, 3 Seld. 97; McClusky v. Cromwell, 1 Kern. 593). The aim and object here being one of general public necessity, the more effectual protection of the liberty of every citizen, and of the rights and use of property, the statute calls for, and must receive a rigid, strict construction (Lieber’s Recapitulation of Rules [in Sedgwick on Interpretation, p. 287], rules 3 and 4; Mayor v. Furze, 6 Hill, 612 , per Nelson, J).
III. Contemporaneous mandatory statutes come in aid of a strict construction of the statutes in question (1 Sess. Laws of 1870, ch. 151, p. 421; New Supreme Court Rule, 94).
IV. Time is of the very essence of this statute, and'' therefore material. It is aimed at abuses of time by the courts in their decision of such motions. In such case discretion cannot be exercised (Sedgw. on Int. 418-19-20, and cases cited ; Code, §§ 331, 332, 352, 353, as to time within which appeals may be taken; Code, § 273, as to time within which referee must report [60 days] ; Litch v. Brotherson, 16 Abb. Pr. 384 , per Bockes, J., special term ; Potter, J., general term).
V. The command here is upon the judiciary, to do a certain act within a specified time. To disobey it by construing the act to be merely directory, would not only be judicial legislation (not allowed by our system of government), but would present the unseemly, spectacle of the court setting up its individual’ opinion against thecombined wisdom of the legislature, expressed in clear and unmistakable language, enjoining
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a duty upon said court. If a referee, sitting as a court to hear, try, and determine a cause, must by law report within sixty days (Code, § 273; 15 Abb. Pr. 384 ), by parity uf reasoning a judge holding a court must (when required as in this case) decide within twenty days.
VI. The order denying defendant’s motion to vacate order continuing injunction, should be reversed ; and the order continuing injunction and appointing a receiver should be set aside, with costs.
Corliss & Erbe, for respondent.—I.
The provision contained in subdivision 8, section 401, of the Code, as to the time within which a decision on a motion shall be rendered and made known, is merely directory (Burger v. Baker, 4 Abb. Pr. 11 ; People v. Dodge, 5 How. Pr. 47 ; Stewart v. Slater, 6 Duer, 83 , 102; O’Brien v. Bowes, 4 Bosw. 663 ; Lewis v. Jones, 13 Abb. Pr. 427 ).
II. If the said provision be imperative and not merely directory, then the judge, after the lapse of twenty days from August 24, 1871, could, upon the principle contended for by the appellant, make no order, either continuing or discontinuing the injunction.
III. Without a positive order, discontinuing and dissolving the injunction, the - same continues to stand in full force, upon its original basis, until the final determination of the action (Kelly v. Jeroloman, 7 Robt. 158).
IV. If the judge lost jurisdiction of the question, after the lapse of twenty days, the appellant cannot object to his action ; for such objection cannot result in any practical benefit to him. The injunction will still remain in force.

This is an appeal from an order made at special term, refusing to set aside

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another order of said special term, because the learned justice who heard the first motion at special term to dissolve the injunction, neglected to file or make known his decision within the twenty days prescribed by section 401 of the Code. The last order made at special term, and from which this is an appeal, should be affirmed for the following reasons:

First. Subdivision 8 of section 401 of the Code is directory. Such was the construction put upon a similar provision in section 267, by Mr. Justice Woodbtjff in this court in the case of O’Brien n. Bower, 4 Bosw. 663 , and such has been the uniform current of decisions in all the courts (People v. Dodge, 5 How. Pr. 47 ; Lewis v. Jones, 13 Abb. Pr. 427 ; Stewart v. Slater, 6 Duer, 83 , 102).

While I am holding, however, this construction of section 401 of the Code to be the correct one, yet I hold that the party aggrieved by the undue delay of a judge can have ample and complete remedy by mandamus against that judge to compel him to file or make known his decision and the proceedings thereunder.

In nearly all cases heard before a single judge the mind of the court is made up as to what its adjudication may be, but sometimes from press of business and other good and sufficient causes, a judge delays putting his views on paper and filing the same until after, but this neglect of the judge should not prejudice the suit- or in whose favor he may have decided, especially, as I have said before, the party deeming himself aggrieved has a complete remedy

Order affirmed, with costs.

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