New York Law Review

Tag: 1910

  • In re троше, 198 N.Y. 143 (1910): Attorney Discipline for Submitting False Pleadings

    In re троше, 198 N.Y. 143 (1910)

    An attorney may be disciplined for knowingly submitting false pleadings or affidavits to a court, even if the attorney claims ignorance of the falsity due to reliance on a clerk.

    Summary

    This case concerns disciplinary action against an attorney, троше, for using false answers in motions to open default judgments. The charges included fraud, malpractice, and suborning perjury. A referee found троше guilty of using false answers on motions to open defaults, but acquitted him on other charges. The Appellate Division approved the referee’s report and suspended троше from practice for two years. The New York Court of Appeals affirmed, finding sufficient evidence to support the finding of unprofessional conduct based on троше’s own admissions and record evidence. The court emphasized that троше’s youth and inexperience were the only justification for the leniency shown.

    Facts

    Woodruff brought a replevin action against Samuelson, who reclaimed the merchandise. троше procured Zimmerman as surety on the required undertakings. A stipulation allowed Samuelson to retain the merchandise with weekly payments to Woodruff, failing which, Woodruff could take judgment without notice. Samuelson defaulted, and judgment was entered against him. Suits were then brought against the sureties. The complaints recited these facts, all true and known to троше. Answers were served on behalf of the sureties, denying knowledge or information about the allegations. These answers, drafted in троше’s office, were false. Default judgments were entered after the original answers were rejected. троше then moved to open these defaults, using the false answers and affidavits of merits.

    Procedural History

    The Bar Association investigated and presented formal charges to the Appellate Division, which referred the matter to a referee. The referee found троше guilty of unprofessional conduct for using false answers but acquitted him on other charges. The Appellate Division approved the referee’s report and suspended троше from practice for two years. троше appealed to the New York Court of Appeals.

    Issue(s)

    Whether the evidence supported the finding that троше engaged in unprofessional conduct by knowingly using false answers on motions to open default judgments.

    Holding

    Yes, because the record evidence, including троше’s own admissions, demonstrated that he used the false answers knowing their falsity, to seek to set aside judgments on complaints that were true of his personal knowledge.

    Court’s Reasoning

    The court found that the proceeding was regularly conducted, and троше’s legal rights were not violated. It stated that it cannot review the Appellate Division’s punishment when guilt is established. The court found ample evidence to sustain the finding, particularly record evidence and троше’s admissions. The court rejected троше’s excuse that he did not know the answers were false, finding it implausible that a lawyer would entrust the drafting of answers to a clerk without reviewing them, especially when moving to open defaults. The court held that троше’s actions were unprofessional, dishonest, and fraudulent. The court quoted the referee’s conclusion that the appellant used these false answers, knowing their falsity, for the express purpose of seeking to set aside judgments upon complaints that were true of appellant’s personal knowledge, and that his effort to induce the court to vacate said judgments was unprofessional, dishonest and fraudulent.” The court concluded that any leniency was due to his youth and inexperience.

  • People v. Walker, 198 N.Y. 329 (1910): Admissibility of Evidence Based on Witness’s Personal Knowledge

    People v. Walker, 198 N.Y. 329 (1910)

    A witness may testify to facts within their personal knowledge, even if those facts might be considered conclusions deducible from other specific facts, provided the opposing party has the opportunity to cross-examine and clarify the basis of the witness’s knowledge.

    Summary

    Walker was convicted of uttering a forged check. The key issue was whether Menton, who endorsed the check on behalf of the payee (Ross Lumber Company), had authority to do so. At trial, C. Edward Ross, one of the partners of Ross Lumber Company, testified that Menton was not authorized to sign the check. Walker appealed, arguing that the trial court improperly allowed Ross to testify about the lack of authorization. The New York Court of Appeals affirmed the conviction, holding that Ross’s testimony was admissible because it related to a fact within his personal knowledge as a partner, and Walker’s counsel failed to properly object on grounds of hearsay or calling for a conclusion. The court also noted the defense’s focus on the judge’s questioning, rather than the substance of the testimony.

    Facts

    A check payable to Ross Lumber Company, a partnership, came into the possession of Menton, an officer of D.J. Menton Company. Menton endorsed the check with “Ross Lumber Company” and gave it to Walker, the secretary/treasurer of D.J. Menton Company. Walker deposited the check, collected the funds, and disbursed them, allegedly to pay D.J. Menton Company’s debts. The prosecution claimed Menton’s endorsement was a forgery, and Walker knew it.

    Procedural History

    Walker was convicted at trial. He appealed to the Appellate Division of the Supreme Court, which affirmed the conviction. He then appealed to the New York Court of Appeals.

    Issue(s)

    Whether the trial court erred in allowing C. Edward Ross to testify that Menton was not authorized to endorse the check on behalf of Ross Lumber Company, when the objection was based on the judge asking the question, not the nature of the testimony itself.

    Holding

    No, because the objection was not properly made on the grounds of hearsay or that it called for a conclusion. Furthermore, the witness was competent to testify, and the defendant was not prejudiced.

    Court’s Reasoning

    The court emphasized that a witness must generally testify from personal knowledge and not offer conclusions. However, whether a question calls for inadmissible hearsay or a conclusion often depends on the specific context and the witness’s relationship to the facts. Here, Ross’s knowledge of whether Menton had authority from Ross Lumber Company depended on whether anyone other than Ross could authorize such an endorsement.

    The Court quoted Sweet v. Tuttle, 14 N.Y. 465, 471, noting that a question does not necessarily call for an opinion merely because the answer may be a conclusion deducible from other facts. The opposing party has the right to cross-examine the witness to clarify the basis of their knowledge. Similarly, the court cited Nicolay v. Unger, 80 N.Y. 54, stating, “It is not difficult to see that it is entirely competent to prove under some circumstances as a fact what under others might be regarded as a mere conclusion of law and would be clearly inadmissible.”

    The court highlighted that Walker’s counsel did not object to the question on the grounds that it called for hearsay or a conclusion. Instead, the objection focused solely on the fact that the *judge* asked the question. Because the objection was not properly made, and because Walker’s defense hinged on C. Edward Ross’s (lack of) authorization, the defendant was not prejudiced by the testimony. The court stated, “Defendant, therefore, could not have been prejudiced by the question and answer even if he had properly objected thereto.”

  • Cary v. Koerner, 200 N.Y. 253 (1910): Adverse Possession Against Original Owner Insufficient to Bar Occupant’s Right to Notice of Tax Sale

    Cary v. Koerner, 200 N.Y. 253 (1910)

    A party in adverse possession against the original owner of land is nonetheless an ‘occupant’ entitled to statutory notice of a tax sale, and failure to provide such notice renders the tax deed invalid and incapable of triggering statutes of limitations.

    Summary

    This ejectment action concerns title to an island claimed by the plaintiff through tax deeds and by the defendant through adverse possession. The court held that the plaintiff’s tax deeds were invalid because the statutory notice to redeem was not served on the defendant’s predecessor, who was an occupant of the land through adverse possession at the time of the tax sales. The court reasoned that the requirement of notice to occupants is mandatory and that recording the tax deeds without evidence of such notice was a nullity, and thus, not subject to the statute of limitations. This case clarifies that adverse possession against the original owner does not negate the occupant’s right to statutory notice of tax sales, emphasizing the importance of strict compliance with notice requirements to ensure valid tax titles.

    Facts

    The plaintiff sought to eject the defendant from Osprey Island, basing their claim on three tax deeds from 1875, 1881, and 1884. The defendant claimed title through adverse possession, initiated by Alva Dunning in 1869, who occupied the island under claim of title. Dunning transferred the property to Charles Durant in 1881, and Durant conveyed it to the defendant, Joseph Ladew, in 1891, who then took possession.

    Procedural History

    The trial court found that the defendant had established title by adverse possession against the original owner. However, it ruled in favor of the plaintiff, asserting that the tax deeds were valid despite jurisdictional defects because the defendant was considered a stranger without standing to challenge the tax title. The defendant appealed, arguing the failure to serve notice to redeem invalidated the tax deeds.

    Issue(s)

    1. Whether a party in adverse possession of land is considered an ‘occupant’ entitled to notice of a tax sale under the relevant statutes.

    2. Whether the failure to serve the required notice to redeem on the occupant invalidates a tax deed.

    3. Whether a curative act or statute of limitations can validate a tax deed that was recorded without evidence of the required notice to the occupant.

    Holding

    1. Yes, because a party in adverse possession is an occupant entitled to notice of tax sale.

    2. Yes, because the statute requires notice to the occupant before the tax deed can be validly recorded.

    3. No, because the recording of a tax deed without evidence of the required notice is a nullity and cannot be validated by curative acts or statutes of limitations.

    Court’s Reasoning

    The Court reasoned that the statutory requirement of serving notice to redeem on the occupant of land sold for taxes is mandatory. Since Alva Dunning and Charles Durant were occupants in adverse possession during the relevant periods, they were entitled to notice. The statute expressly forbade recording the tax conveyances until the expiration of the notice period and required evidence of service to be recorded with the conveyance. The court found that because no notice was served and no evidence of service was recorded, the tax deeds were effectively not recorded at all. The court stated, “Therefore, in the case of occupied land, such as this was, the record, without evidence of service of the notice, was absolutely void. Hence it seems to me that the tax deeds from the comptroller are to be regarded as though they had not been placed upon the record books at all.”

    The Court further held that the curative acts (Laws of 1885, chapter 448; Laws of 1896, chapter 908) did not remedy this defect. While these acts provided that a recorded comptroller’s conveyance becomes conclusive evidence of the regularity of the proceedings after two years, this did not apply to a record that was wholly void from the outset. Citing Meigs v. Roberts, 162 N.Y. 371, the Court emphasized that such acts are essentially statutes of limitations and do not validate fundamentally defective records. The Court distinguished People v. Turner, 145 N.Y. 451, noting that in that case, the referee’s finding negated any actual occupancy requiring notice. Therefore, the Court reversed the judgment, ordering a new trial.