Sherman Croswell New York (State). Legislature.

The Clerk's manual of rules, forms and laws for the regulation of business ... online

. (page 7 of 45)
Online LibrarySherman Croswell New York (State). LegislatureThe Clerk's manual of rules, forms and laws for the regulation of business ... → online text (page 7 of 45)
Font size
QR-code for this ebook


considered in the light of history and in all its aspects.
(People ex rel. Met. St. Ey. Co. v. Tax Com'rs, 174 N. Y.
417.) (1903.)

In determining the constitutionality of an act the court,
except in extraordinary circumstances, is limited to a con-
struction of the law itself construed in the light of the
facts of which the court can take judicial notice. (Tene-
ment House Department v. Moeschen, 89 App. Div. 520.)
(1904.)

In its Inquiry as to whether an Improvement authorized
by statute is for a purpose which is public or one merely
private or local the court is confined to matters appearing
on face of the bill itself and to things that are the subject
of judicial notice. (Waterloo Woolen .Mfg. Co. v. Shanahan,
128 N. Y. 345.)

ARTICLE 1.

Persons not to be disfranchised. — Section 1. No mem-
ber of this State shall be disfranchised, or deprived of
any of the rights and privileges secured to any citizen
thereof, unless by the law of the land^ or the judgment
of his peers.

[Section 1 of article I of the amended constitution of 1846.
without change.]

A law affecting any rights of an individual can only }k
questioned as to constitutionality by the Individual afTected.



y Google



112 Clerk's Manual.

(Sinclair v. Jackson, 8 Cow. 578; Waterloo Woolen Mfg.
Co. V. Shanahan, 128 N. Y. 345.) '* Law of the laud " does
not mean the act of legislature which deprives the citizen
of his rights, privileges or property. (Wynehamer v. Peo-
ple, 13 N. Y. 393 et seq., which is a leading case as to the
meaning of ** law of the land," and " due process of law."
See also Taylor v. Porter. 4 Hill, 140; White v. White. 5
Barb. 474; People v. Toynbee, 20 id. 168. 198; Green v.
Shumway, 39 N. Y. 426; Bo we v. U. S. Reflector Co.. 30
Hun, 410.)

Statute providing for courts-martial not in conflict with
this section. (People ex rel. v. Danlell, 50 N. Y. 274. 280.)

The provisions of this section do not take away the legis-
lature's poWer of taxation. (Town of Guilford v. Super-
visors, 13 N. Y. 143; People v. Supervisors of Ulster Co., 30
Hun, 491, 496.)

Section 383 of the Penal Code prohibiting the exclusion of
colored persons from places of amusement not in conflict
with this section. (People v. King, 42 Ilun, 186; affd., 110
N. Y. 418.)

The sovereign power may regulate the use of one's prop-
erty with reference to the public welfare. (Id.)

The right to liberty secured to the citizen by constitu-
tional prohibition includes the right to adopt and follow
such lawful individual pursuits, not injurious to the com-
munity, as he may see fit. Principle applied to statute
prohibiting manufacture of oleomargarine, etc. (People v.
Marx, 09 N. Y. 377.)

Section 292 of the Penal Code prohibiting employment or
exhibition of child under fourteen years as a dancer. Is
not contrary to this section. (People v. Ewes, 47 St. Rep.
501; S. C. 141 N. Y. 129; as to S 713 of Penal Code, see
People ex rel. Zeese v. Maston. 79 Hun, 580.)

The provision permitting the formation of a state com-
mission from one political party is not in violation of the
constitution. (Rogers v. Common Council of Buffalo, 123
N. Y. 173, 181.)

Rights of citizens are not abridged by law providing for
eight hours labor as in Laws 1891, chapter 105, title 24, sec-
tion 504. (People v. Warren, 77 Hun, 120.)

As to constitutionality of section 873 of Code of Civil Pro-



y Google



Art. 1, S 1. Constitution. 113

cednre providing for examination of person of plaintiff in
personal injury cases. (Lyon v. Man. R. Co., 142 N. Y. 298.)

Ticket brokerage act, held unconstitutional as violative of
the constitutional guarantees of civil rights and privileges
and of liberty. (People ex rel. Tyroler v. Warden, 157 N. Y.
116.) (1898.)

The citizen has no absolute right to the secrecy of Uls
papers. The right guaranteed Is not against all searches
and seizures but against unreasonable ones. (People v.
Coombs, 36 App. Dlv. 284.) (1899.) (Affd., 158 N. Y. 532.)

The right to appeal Is not a constitutional right. Where
It does exist It Is simply the continuance of an existing
practice by the constitution subject to the legislative right
to curtail or abolish It or Is founded on some statute.
(People V. Rutherford, 47 App. Dlv. 209.) (1900.)

Query. Whether a statute Imposing a penalty upon a wit-
ness to a will who omits to write down his residence oppo-
site his name Is unconstitutional. (Dodge v. Cornelius, Ifcb
N. Y. 242.) (1901.)

Query. As to validity of provision of side path law
limiting the use of side path to licensed bicycle owners.
(Ryan v. Preston, 59 App. Dlv. 97.) (1901.)

A corporation Is not a citizen of the state In a constitu-
tional sense. (Anglo-American Provision Co. v. Davis Pro-
vision Co., 169 N. Y. 506.) (1902.)

An act prohibiting a person receiving a pension from a
city from holding any office under the city unconstitutional.
(People V. Woodbury, 38 Misc. 189.) (1902.)

Provision of labor law as to hours of employment of
bakers held constitutional. (People v. Lochner, 73 An;.
Dlv. 120.) (1902.)

Section 351, Penal Code prohibiting the keeping of a place
for making, recording and registering bets and wagers does
not establish two different punishments for the same
offense. (People v. Stedeker, 75 App. Div. 449.) (People
V. De Bragge, 73 App. Div. 579.) (1902.)

Section 687a, Penal Code, providing for Indeterminate
sentences constitutional. (People v. Warden of Sing Sing
39 Misc. 113.) (1902.)

The rule of the New York fire department forblddr
member of the force of being member of any politic
or association Intended to affect legislation concen.




114 Clebk*s Manxjal.

department does not abridge his right as citizen. (People
V. Scannell, 74 App. Dlv. 406.) (1902.)

A school district cannot maintain an action to have a
statute transferring a portion of its territory to another
district, declared unconstitutional as the only persons In-
terested in the determination of that question are tax-
payers and creditors and it is not a real party in Interest.
(Board of Education v. Board of Education, 76 App. Dlv.
355.) (1903.)

A party may waive a rule of law or a istatute or even a
constitutional provision enacted for his benefit or protection
where it is exclusively a matter of private right and no
consideration of public morals is involved and having done
so he cannot subsequently invoke Its protection. In a neg^
ligence action where the plaintiff has been examined by the
defendant's physicians, who have testified without objec-
tion, the defendant cannot ask the court to permit a new
examination. (Whltaker v. Staten Island M. R. R. Co., 76
App. Dlv. 351.) (1902.)

A holder of a liquor tax certificate who. In a proceeding
for the cancellation thereof, interposes a verified answer
waives his constitutional right to refuse to answer under
oath. (Matter of Cullinan, 76 App. Dlv. 362.) (1902.)

Section 344b of the Penal Code providing that the posses-
sion of policy slips is presumptive evidence of the posses-
sion knowingly thereof is constitutional. (People v. Adams,
176 N. y. 351.) (1903.)

The provision of sanitary code of New York city requir-
ing a person desiring to sell milk to obtain a permit of the
board of health, held constitutional. (People v. Vandecarr,
175 N. Y. 440.) (1903.)

Query. Whether the Legislature has power to make the
breach of a civil contract a criminal offense. (People v.
Orange County Road Construction Co., 175 N. Y. 84.)
(1903.)

In determining the reasonableness of a statute the court
Is at liberty to consider the established usages, customs and
traditions of the people and to have in view the promotion
of their comfort and the preservation of the public peace
and good order. (Grossman v. Caminez, 79 App. Dlv. 15.)
(1903.)



y Google



Art. 1, 1 1. CJoNSTiTunoN. 116

Provisions of the Penal Code requiring an agent to ob-
tain written authority to sell real estate held unconstitu-
tional. (Grossman v. Camlnez, 79 App. Div. 15 ; Cody v.
Dempsey, 86 App. Dlv. 335. Contra, Whlteley v. Terry, S3
App. Dlv. 197.) (1903.)

Provision of New York charter for discharge of prisoner
convicted of vagrancy held constitutional. (People ex rel.
Abrams v. Fox, 77 App. Dlv. 245.) (1903.)

The courts have power to set aside Indictments whenever
It has been made to appear that they have been founded
upon Illegal and Incompetent testimony. This power Is
based upon the Inherent right and duty of the courts to
protect the citizen In his constitutional prerogative and to
prevent oppression or persecution. It Is a power which the
Legislature can neither curtail or abolish.

A motion may be entertained to dismiss an Indictment on
grounds other than those specified in section 313 of the
Code of Criminal Procedure. (People v. Glen, 173 N. Y.
395.) (1903.)

Provisions of public health law prohibiting children from
attending school unless they have been vaccinated held to
be a reasonable regulation and constitutional. (Matter of
Vlemeister v. White, 88 App. Div. 44.) (1903.)

The legislature is vested with absolute power of taxa-
tion, subject only to the limitation that the burden of
taxation shall be uniform and equal over all. Tax upon
rents reserved In perpetual lease constitutional. (Woodruff
V. Oswego Starch Factory, 177 N. Y. 23.) (1903.)

Under Employers' Liability Act a complaint which states a
cause of action good at common law Is not demurrable be-
cause It falls to allege that the employee served upon the
employer the notice required by the act. The statute re-
quires the service of a notice only where the plaintiff seeks
to enforce a cause of action which did not exist at common
law and was conferred by statute, otherwise It would be
unconstitutional. (Rosin v. LIdgerwood Mfg. Co., 89 App.
Dlv. 245.) (1903.)

The right to be appointed to a nonelectlve municipal office
Is only a privilege, and a state may pass laws to regulate
the privileges and Immunities of Its own citizens provided
that \n so doing It does not abridge their privileges and



vGooQle



gl



116 Glebe's WormOL

immunities as citizelis of the United States. It can limit
tlae right of appointing officers to remove their appointees.
(People ex rel. Kenney v. Follcs, 89 App. DIv. 171.) (1903.)
The provisions of the highway law providing for the
registration of automobiles are not invalid as class legis-
lation. (People V. MacWilliams, 91 App. DIv. 176.) (1904.)

Trial by jury. — § 2. The trial by jury in all cases
in which it has been heretofore used shall remain invio-
late forever; but a jury trial may be waived by the
parties in all civil cases in the manner to be prescribed
by law.

[Section 2 of article I of the amended constitution of 1S46,
without change.]

The expression " in all cases In which It has been here-
tofore used '• is generic. It does not limit the right to the
mere Instances in which it has been used, but extends it to
such new and like cases as might afterward arise. (Wyne-
hamer v. People, 13 N. Y. 426.) The word " heretofore "
in this clause means before 1846, and cannot be carried
back to 1777 and confined to cases which at that early period
were triable by a jury. (Id. 427. See also Riggs v. Shan-
non, 27 Abb. N. C. 456.) Such jury must be a jury of twelve
men. (Id. 427; People ex rel. v. Justices, 74 N. Y. 406.)

Act creating special session for trial of petit larceny
without a jury is constitutional. (Murphy v. People, 2
Cow. 815.)

Constitutional provision does not apply to the petty of-
fenses triable before a court of special sessions. (People
ex rel. v. Justices, 74 N. Y. 406.)

Right to trial by jury has no reference to proceedings
intended merely to prevent the commission of offenses.
(Duffy V. People, 1 Hill, 355; S. C, 6 id. 75.)

Nor does It apply to special proceedings for removal of
tenants. (Roberts v. Cone, 3 Alb. L. J. 151.) Nor to a
proceeding for determining whether a license should not be
revoked for violation of law. (People eat rel, v, Comml^-



y Google



Art. 1, §2. CONSTITtJTION. 117

sioners of Police of Brooklyn, 59 N. Y. 92.) Nor to Im-
prisoning for nonpayment of costs. (Standacher v. Webb,
16 Hun, 42.) Nor to a summary proceeding for judgment
on a recognizance. (People v. Quigg, 59 N. Y. 83.)

Legislature cannot take the right away by classing amou.t;
disorderly persons those who are entitled to a Jury trial.
(People ex rel. v. Baird, 4 Weekly Dig. 576.)

Act of legislature not unconstitutional because it allows
title to land to be tried in an action of partition; party de-
siring Jury trial may have it by issues sent to circuit for
trial. (Ward v. Ward, 23 Hun, 431.)

The provision of the constitution relative to trial by Jury
relates to the trial of issues of fact, in civil and criminal
proceedings, and has no relation to assessments for dam-
ages for property taken for a public purpose. (Livingston
V. Mayor of New York, 8 Wend. 85; Matter of Newell
Smith, 10 Id. 449; People ex rel. Herrick v. Smith, 21 N. Y.
595; Astor v. Mayor, 62 id. 580.)

The trial by Jury is preserved by the constitution In all
cases In which it had been used prior to its adoption. Bui
In controversies cognizable in courts of equity a Jury trial
was never, In general, resorted to. (Matter of the Empire
City Bank, 18 N. Y. 199, 210; Sands v. Kimbark, 27 id. 147;
Hudson V. Caryl, 44 Id. 553, 555.)

The Hen law of 1862, relating to liens upon vessels. Is not
unconstitutional as infringing upon the right of trial by
Jury. (Sheppard v. Steele, 43 N. Y. 52.) As to oonstltu-
tlonallty of mechanics' Hen law, see Schllllnger Fire Proof
Cement Co. v. Arnott, 14 N. Y. Supp. 326.

In an action to abate a nuisance, a Jury trial Is a matter
of right. (Hudson v. Caryl, 44 N. Y. 553.)

The circumstance of the question involved being one of
facts does not of Itself give a right to a trial by Jury.
(McKeon v. See, 51 N. Y. 300.) If request for Jury be nut
founded on tenable ground, even if right existed, the court
would not err In refusing request. (Id.)

Waiver of trial by jury may be adjudged upon any evi-
dence which would be sufficient to constitute a waiver of
rights in other cases. (Balrd v. Mayor, 74 N. Y. 382;
Powell V. Waldron, 89 Id. 328; Hund v. Kennedy, 83 Id. 149.)

Act providing suroroary trial »hd puoislimept of public



y Google



118 Clerk's Manual.

intoxication by magistrate is not repugnant to this section
(People V. Burleigh, 1 Crim. R. 522.)

In an equitable action a trial by jury is not a matter of
right; it rests in the discretion of the court. (Knicker-
bocker Life Insurance Co. v. Nelson, 8 Hun, 21; Cushman
V. Thayer Mfg. Co., 76 N. Y. 365.)

Defendant cannot be deprived of constitutional right to
trial by j.iry because plaintiff demands equitable relief.
(Libman v. Manhattan El. R. R. Co., 26 Abb. N. C. 423;
S. C, 59 Han, 428.)

For recent decisions as to the right of trial by jury, see
Colon V. Lisk, 153 N. Y. 188 (1897); Buttling v. Hatton, 18
App. Div. 128 (1897); Schillinger v. Arnott. 153 N. Y. 584
(1897).

An act which merely regulates the mode of securing a
common-law jury is not violative of the right of trial by
jury. (People v. Dunn, 157 N. Y. 528.) (1898.)

An act providing for a special jury in criminal cases and
for the mode of selecting the same and creating a special
jury commissioner is not violative of this section. The con-
stitution does not secure to the defendant any particular
mode of jury trial nor any particular method of jury selec-
tion. It secures simply the right of a trial by a common-
law jury of twelve men. The right to peremptory chal-
lenges may be granted or withheld at the legislative will.
The legislature may regulate the mode of selecting and
procuring grand jurors. (People v. Dunn, 157 N. Y. 528.)
(1899.)

The provision in the United States constitution that " in
all criminal prosecutions the accused shall enjoy the right
of a speedy and public trial by an Impartial jury " applies
to the United States courts only. (People v. Hall, 51 App.
Div. 57.) (1900.) (Afifd., 169 N. Y. 184.)

The accused is not denied his constitutional right to a
trial by a common-law jury because jurors are selected
from the general panel after the exclusion therefrom of
competent jurors by the commissioner of jurors for the
purpose of making up a special jury list. (People v. Meyer,
162 N. Y. 357.) (1900.)

The holder of a liquor tax certificate Is not entitled to a
trial by jury before he can be deprived thereof, (Matter of
Lyman, 46 App. Div, 387.) (1899.)



y Google



Art. 1, S 3. Constitution. 119

Provisions of an act autliorizing a comparison of disputed
handwriting with other writing proved to the satisfaction
of the court to be genuine leaves the ultimate determina-
tion of the genuineness of the handwriting in question with
the Jury and is, therefore, constitutional. (People v.
Molineux, 168 N. Y. 264.) (1901.)

Anti-policy law constitutional. (Wilson v. Flynn, 72 App.
Dlv. 67.) (1902.)

The provision that trial by jury shall remain inviolate
does not appiy to the trial of misdemeanors by courts of
special sessions and justices' courts. (People v. Brady, 37
Misc. 126.) (1902.)

The property right of the owner of a liquor tax certificate
Is a limited right not protected by the constitutional re-
quirement of a jury trial. (Matter of Cullinan, 70 App. Div.
362.) (1903.)

The right to successive jury trials in an action of eject-
ment is not an absolute one but is a matter of procedure,
subject to change by the legislature. (Satterlee v. Kobbe,
173 N. Y. 691.) (1903.)

In an action at law the court has no power against the
objection of either party to discharge the jury and in their
absence pass upon the question of fact. The constitution
guarantees to either party the right to have the question
of fact passed upon by the jury. (Gansberg v. Sagemohl,
67 App. Div. 554.) (1902.)

In a common-law action brought by an executor or ad-
ministrator a compulsory reference should not be ordered
unless It clearly appears that the trial will necessarily In-
volve the examination of a long account. If other inde-
pendent Issues are raised by the pleadings they should be
first tried by a jury and a reference then ordered to de-
termine those involving examination of long account. (Ma-
lone V. Sts. Peter & Paul's Church, 172 N. Y. 269.) (1902.)



Freedom of worship; religious liberty. — § 3. The
free exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall
forever be allowed in this State to all mankind; and



y Google



120 Clerk's Manual.

no person shall be rendered incompetent to be a witness
on account of his opinions on matters of religious be-
lief; but the liberty of conscience hereby secured shall
not be so construed as to excuse acts of licentiousness,
or justify practices inconsistent with the peace or safety
of this State.

[Section 3 of article I of the constitution of 1846, without
change.]

This section does not shield a witness from cross-exami-
nation as to his religious belief. (Stanbro v. Hopkins, 28
Barb. 265.)

A statute which prevents theatrical entertainments on
Sunday is valid. (Llndenmuller v. People, 33 Barb. 548;
Neundorflf v. Duryea, 69 N. Y. 557; People v. Hoynn, 20
How. Pr. 76.)

A prosecution under section 288 of the Penal Code for
failure to furnish necessary medical attendance to a child
against a person who belongs to a religious society which
does not believe in physicians and believes that the child
will be cured through the medium of prayer is not in viola-
tion of this section, since practices inconsistent with the
peace and safety of the state and the protection of the
lives and health of its inhabitants are properly punishable.
(People T. Plersou, 176 N. Y. 201.) (1903.)

Habeas corpus. — § 4. The privilege of the writ of
habeas corpus shall not be suspended, unless when, in
cases of rebellion or invasion, the public safety may
require its suspension.

[Section 4 of article I of the amended constitution of 1846,
without change.]

The legislature canuot commit a person for contempt and
then forbid all Inquiry into the rightful exercise of that



y Google



Art. 1, § 5. Constitution'. 121

power, for this would take away the benefit of the writ
of habeas corpus. (People ex rel. McDonald v. Keeler. 32
Hun, 563; S. C, 99 N. Y. 463.)

Excessive bail and fines. — § 5. Excessive bail shall
not be required nor excessive fines imposed, nor shall
cruel and unusual punishments be inflicted, nor shall
witnesses be imreasonably detained.

[Section 1 of article V of the amended constitution of
1846, without change.]



The following Is a history of the constitutional provision
against cruel and unusual punishment found in the case of
Matter of Bayard, 25 Hun, 546, opinion of Rumsey, J.:
" We first find the Injunction against cruel and unusual
punishment In the Declaration of Rights, presented by the
convention to William and Mary before settling the crown
upon them In 1688. That declaration recites the crimes and
errors which had made the revolution necessary. These
recitals consist of the acts only of the former king and
the judges appointed by him, and one of them was that
Illegal and cruel punishment had been Inflicted. (Stephen's
Eng. Const. 44.) The punishments complained of were the
pillories, sllttlngs and mutilations which the corrupt judges
of King James had Inflicted without warrant of law, and
the declaration was aimed at the acts of the executive, for
the judges appointed by him, and removable at pleasure,
were practically part of the executive. It clearly did not
then refer to the degree of punishment, for the criminal
law of England was at that time disgraced by the Infliction
of the very gravest punishment for slight offenses, even
petit larceny then being punishable with death. But the
declaration was Intended to forbid the Imposition of punish
ment of a kind not known to the law, or not warranted
the law."

The provision as to excessive ball only applies to cri
actions. (People v. Tweed, 13 Abb. [N. S.J 148.)




122 Clebk's Manual.

While the legislature has established a general maximum
punishment throughout the state for a crime, It may change
or increase the punishment as to particular localities.
(Matter of Bayard, 25 Hun, 546.)

Disqualification from holding office is not an unconstitu-
tional punishment for a crime. (Barker v. People, 20 Johns.
457.)

This section confers power upon the courts to declare
void acts of the legislature prescribing punishments for
crime, in fact cruel and unusual. (People ex rel. Kemmler
V. Durston, 119 N. Y. 569.)

But the act of 1888, chapter 489, providing for the in-
fliction of the death penalty by means of electricity, is
constitutional. (Id.)

Grand Jury — Bill of Rights. — § 6. No person shall
be held to answer for a capital or otlierwise infamous
crime (except in cases of impeachment, and in cases of
militia when in actual service, and the land and naval
forces in time of war, or which this State may Ijeep
with the consent of Congress in time of peace, and in
cases of petit larceny, under the regulation of the Legis-
lature), unless on presentment or indictment of a grand
jury, and in any trial in any court whatever the party
accused shall be allowed to appear and defend in person
and with counsel as in civil actions. Xo person shall
be subject to be twice put in jeopardy for the same
offense; nor shall he be compelled in any criminal case
to be a witness against himself; nor be deprived of life,
liberty or property without due process of law; nor
shall private property be tal^en for public use, without
just compensation.

[Section 6 of article I of the constitution of 1846, without
change.]

Digitized by VjOOQIC



Art. 1, § 6. Constitution. 123

Indictment of Grand Jury.

This provision has reference to criminal proceedings only
with a view to punishment under the criminal law. (Matter
of Smith, 10 Wend. 449.)

The bill of rights must be interpreted in light of the law
as it was when the bill was adopted, and though indict-
ments could generally be tried only in the county where the
offense was committed, there were exceptions by virtue of
legislative enactment. (Mack v. People, 82 N. Y. 235; Peo-
ple V. Dowling, 84 id. 478.)

An indictment found by a grand jury drawn under a void
act is the indictment of a de facto grand jury selected and
organized under the forms of law and therefore valid.
(People V. Petrae, 92 N. Y. 128.)

Provision of Code of Criminal Procedure allowing amend-
ment to Indictment, by direction of court, without prejudice



Online LibrarySherman Croswell New York (State). LegislatureThe Clerk's manual of rules, forms and laws for the regulation of business ... → online text (page 7 of 45)