New York Law Review

Tag: due process

  • Matter of Department of Bldgs. of City of New York, 14 N.Y.2d 293 (1964): Constitutionality of Receivership Law for Nuisance Abatement

    Matter of Department of Buildings of City of New York, 14 N.Y.2d 293 (1964)

    A state’s exercise of its police power to remedy unsafe housing conditions can permissibly impair existing mortgage contracts, provided the measures are reasonable and appropriate to address a legitimate public concern, and due process is afforded to the mortgagee.

    Summary

    This case concerns the constitutionality of New York’s Receivership Law, which allows the city to appoint a receiver to remedy dangerous conditions in multiple dwellings. The Department of Buildings sought a receiver for a building with numerous violations. The owner and mortgagee challenged the law, arguing it impaired the mortgagee’s contract rights and denied due process. The New York Court of Appeals upheld the law, finding it a valid exercise of police power to address a housing emergency. The court emphasized that the amended statute provided sufficient notice and opportunity for the mortgagee to be heard, distinguishing it from a prior unconstitutional version.

    Facts

    The Department of Buildings of New York City certified that a nuisance existed at 221 West 21st Street, a five-story rent-controlled building, due to numerous violations of housing codes. The Department issued an order to the owner and mortgagee to remove the nuisance. Re-inspections revealed no changes and the Department applied to the Supreme Court for the appointment of a receiver. The building was also deemed unsafe and tenants were ordered to vacate due to the risk of collapse. The owner had started repairs but hadn’t completed them by the deadline.

    Procedural History

    The Department of Buildings petitioned the Supreme Court for the appointment of a receiver under Multiple Dwelling Law § 309. The Supreme Court granted the motion but stayed the appointment to allow the owner time to complete repairs. After extensions, the court appointed the receiver when the violations remained uncorrected. The Appellate Division affirmed the Supreme Court’s decision. The owner and mortgagee appealed to the New York Court of Appeals as of right, challenging the constitutionality of the statute and the validity of the receivership order.

    Issue(s)

    1. Whether the Receivership Law unconstitutionally impairs the mortgagee’s rights under a prior mortgage contract in violation of Article I, Section 10 of the U.S. Constitution.

    2. Whether the owner and mortgagee were denied due process during the proceedings.

    3. Whether the facts warranted the appointment of a receiver under the statute.

    Holding

    1. No, because the law is a valid exercise of the state’s police power to address a public emergency, and the impairment of the mortgagee’s contract is reasonable and necessary.

    2. No, because the statute provides for notice and an opportunity to be heard, and the appellants were in fact given multiple hearings.

    3. Yes, because the record supported the finding of a serious nuisance constituting a fire hazard and threat to life and safety.

    Court’s Reasoning

    The Court reasoned that the legislation was enacted to eliminate dangerous housing conditions and increase the supply of safe housing, addressing a declared public emergency. The Court stated that “the state may establish regulations reasonably necessary to secure the general welfare of the community by the exercise of its police power although the rights of private property are [thereby] * * * curtailed and freedom of contract is abridged.” The Court distinguished this case from Central Sav. Bank v. City of New York, which invalidated a prior version of the law because it lacked due process protections for mortgagees. The amended statute provides notice and an opportunity for the mortgagee to participate in the proceedings, contest the existence of a nuisance, and seek reimbursement for repairs. The court noted that the statute now gives the receiver only a prior right to the rents, not a superior lien on the property itself. The court emphasized the limited nature of the impairment, stating the mortgagee shall not be entitled “to any of the rents” or “to a discharge of the receiver” until the cost of repairs and alterations has been satisfied. The Court concluded that the measures taken by the Legislature were reasonable and appropriate, stating, “The same public interest which supports the statute when directed against an owner, even though it impinges on his right to deal freely with his property, equally justifies the legislation as a reasonable exercise of the police power insofar as it affects the rights of the mortgagee.” The Court found that the appellants were afforded due process with multiple hearings and opportunities to present evidence. The Court emphasized that the law allows the appellants to terminate the receivership by reimbursing the receiver for the cost of removing the nuisance.

  • Salter v. New York State Psychological Ass’n, 14 N.Y.2d 103 (1964): Limits on Court Intervention in Private Association Membership

    Salter v. New York State Psychological Ass’n, 14 N.Y.2d 103 (1964)

    Courts will generally not interfere with a private association’s membership decisions unless membership is an economic necessity for practicing a profession.

    Summary

    Andrew Salter, a certified psychologist, sought a court order compelling the New York State Psychological Association (NYSPA) to admit him as a member. NYSPA, a private organization, required at least two years of graduate work in psychology, which Salter lacked. Salter argued that NYSPA was effectively a state entity with monopoly power over the profession, making his exclusion a violation of equal protection and due process. The court held that NYSPA was a private entity, its membership requirements were reasonable, and membership was not an economic necessity for Salter’s practice; therefore, the court would not compel his admission.

    Facts

    Andrew Salter was a practicing psychologist certified by New York State. The New York State Psychological Association (NYSPA) is the most important association of psychologists in the state. NYSPA’s bylaws required applicants to have completed at least two years of graduate work in psychology, or equivalent experience. Salter did not meet these requirements, possessing only a Bachelor of Science degree and no postgraduate work. Salter received a circular from NYSPA soliciting applications, which he considered an invitation to join, but his application was ultimately denied.

    Procedural History

    Salter petitioned the court to order NYSPA to admit him. Special Term dismissed the petition, finding that the circular was merely an invitation to apply, not an election to membership. The Appellate Division affirmed without opinion. Salter then appealed to the New York Court of Appeals.

    Issue(s)

    Whether a private professional association’s membership requirements violate equal protection and due process clauses when the association is not a state entity, its requirements are reasonable, and membership is not an economic necessity to practice the profession.

    Holding

    No, because the association is a private entity, its membership requirements are less rigorous than the state’s own requirements for new psychologists, and membership is not an economic necessity to practice as a psychologist. The Court of Appeals affirmed the lower court’s dismissal of Salter’s petition.

    Court’s Reasoning

    The Court of Appeals rejected Salter’s arguments that NYSPA was effectively a state entity or held monopoly power. The court reasoned that NYSPA was a private corporation governed by its own bylaws, which were less rigorous than state requirements for new psychologists seeking certification. The court highlighted that the state’s certification law does not prohibit uncertified individuals from rendering psychological services, but only restricts their use of the title “psychologist.” The court distinguished this case from cases like Falcone v. Middlesex County Medical Society, where exclusion from a medical society effectively prevented a doctor from practicing due to hospital access requirements. Here, Salter did not demonstrate that NYSPA membership was an “economic necessity” for his practice. The Court stated, “Courts, it seems, interfere in such matters only when there is a showing of ‘economic necessity’ for membership.” The court emphasized that cooperation between NYSPA and the state’s advisory council did not transform the association into a state agency. The court concluded that excluding someone from a selective group might diminish prestige, but it’s not the court’s role to review such selections absent proof of restricted professional activities due to non-membership. Therefore, NYSPA’s decision to deny Salter’s application was within its rights as a private organization.

  • People ex rel. Lupo v. Fay, 13 N.Y.2d 253 (1963): Defendant’s Presence at Trial; When Absence Does Not Violate Rights

    People ex rel. Lupo v. Fay, 13 N.Y.2d 253 (1963)

    A defendant’s right to be present at their felony trial extends only to situations where their presence has a reasonably substantial relation to the fullness of their opportunity to defend against the charges; absence during arguments on motions unrelated to direct evidence or jury instruction does not automatically void a conviction.

    Summary

    The case addresses whether a defendant is entitled to habeas corpus relief because he was absent from the courtroom during his counsel’s motion for a mistrial. The motion, based on the argument that further jury deliberation would be coercive, was denied, and the defendant was convicted. The New York Court of Appeals held that the defendant’s absence during this particular stage of the trial did not violate his rights. The court reasoned that due process requires the defendant’s presence only when it’s necessary for a fair and just hearing, specifically when it impacts his opportunity to defend against the charges. The court affirmed the dismissal of the writ of habeas corpus.

    Facts

    After the jury in Lupo’s grand larceny trial deliberated for hours, they indicated difficulty reaching a verdict around midnight. The trial judge instructed them to continue deliberations and arranged for hotel accommodations. Following the jury’s departure, Lupo’s counsel moved for a mistrial, arguing that continued deliberation would be coercive. Lupo was not present in the courtroom during this motion. The motion was denied. The jury resumed deliberations the next morning, requested further instructions around noon, and ultimately returned a guilty verdict late in the afternoon.

    Procedural History

    Lupo was convicted of grand larceny. He appealed, and the Appellate Division affirmed the conviction (13 A.D.2d 684). Leave to appeal to the New York Court of Appeals was denied. Lupo then sought habeas corpus relief, arguing his absence during the motion for a mistrial warranted the writ. The Supreme Court, Dutchess County, dismissed the writ. Lupo appealed this dismissal to the New York Court of Appeals.

    Issue(s)

    Whether the defendant is entitled to habeas corpus relief because he was absent from the courtroom while his counsel argued a motion for a mistrial based on potentially coercive jury deliberation.

    Holding

    No, because the defendant’s absence from the courtroom during his counsel’s argument for a mistrial did not affect any substantial right of his and did not invalidate the subsequent judgment of conviction.

    Court’s Reasoning

    The court relied on Section 356 of the Code of Criminal Procedure, which mandates the defendant’s personal presence during a felony trial to prevent secret trials and guarantee the right to be present at all important stages. However, the court clarified that this right is not absolute and must be balanced with reason. Citing Snyder v. Massachusetts, 291 U.S. 97, the court emphasized that due process requires the defendant’s presence only to the extent that it’s necessary for a fair and just hearing. Justice Cardozo’s inquiry in Snyder was adopted: whether the defendant’s presence at the particular trial stage had “a relation, reasonably substantial to the fulness of his opportunity to defend against the charge”. The court found that Lupo’s absence during the mistrial motion, which concerned the potential coercion of the jury, did not impact his ability to defend against the charges. The court emphasized that this ruling does not change the established rule that a defendant’s presence is indispensable during testimony, summations, jury instructions, the rendering of the verdict, and sentencing. The court explicitly declined to address the issue of waiver, finding no evidence that Lupo voluntarily surrendered his right to be present.

  • Central Savings Bank v. City of New York, 280 N.Y. 9 (1939): Constitutionality of Retroactively Impairing Mortgage Liens

    280 N.Y. 9 (1939)

    A municipality cannot enact legislation that retroactively impairs the priority of existing mortgage liens to enforce compliance with housing codes, as this violates the Due Process and Contract Clauses of the U.S. and New York Constitutions.

    Summary

    Central Savings Bank challenged the constitutionality of a 1937 amendment to the Multiple Dwelling Law, which allowed New York City to prioritize liens for housing code violations over existing mortgages. The Court of Appeals held the amendment unconstitutional as applied to prior mortgagees. The court reasoned that the law deprived mortgagees of their contractual rights and property without due process by allowing the city to unilaterally impose liens that diminished the value of their security without providing an opportunity to be heard on the reasonableness of the expenses. The law forced mortgagees to finance improvements without their consent, impairing their existing contractual lien priority.

    Facts

    Central Savings Bank, Emigrant Industrial Savings Bank, and Dry Dock Savings Institution collectively held approximately 4,500 mortgages on old law tenement houses in New York City. Central Savings Bank held a $20,000 first mortgage on a property at 45 First Avenue, dated March 24, 1927. The property had existing violations for failing to comply with the Multiple Dwelling Law. The Department of Housing and Buildings issued an order to remove the violations. The city intended to make the repairs itself and impose a lien of $1,621 on the property that would take priority over the bank’s mortgage.

    Procedural History

    The banks brought a lawsuit challenging the constitutionality of Section 309 of the Multiple Dwelling Law, as amended by Chapter 353 of the Laws of 1937, as it applied to them as mortgagees. The lower court ruled in favor of the City. The banks appealed to the New York Court of Appeals.

    Issue(s)

    Whether Section 309 of the Multiple Dwelling Law, as amended by Chapter 353 of the Laws of 1937, is constitutional under the United States and New York State Constitutions, specifically regarding its impact on the rights of existing mortgagees.

    Holding

    No, because the law impairs the contractual rights of mortgagees and deprives them of property without due process of law, violating both the Federal and State Constitutions.

    Court’s Reasoning

    The court reasoned that the amendment to the Multiple Dwelling Law unconstitutionally impaired the mortgagees’ contractual rights and deprived them of property without due process. The court emphasized that while the state has the power to regulate tenement houses for public health and safety, it cannot force mortgagees to bear the cost of improvements without their consent or an opportunity to be heard. The court stated, “The mortgagee not being in possession, has no option whatever, but must sit idly by while the department or the owner proceeds to diminish the value of his lien. The work being done, and the record and affidavit being filed with the Board of Assessors, as required, the expenses become a lien upon the property ahead of his mortgage, all of which is final as to him. The law affords him no opportunity to be heard as to the reasonableness of the proceeding or the expenses. His property is thus taken without due process of law.” The court distinguished the mortgagee’s situation from the owner’s, noting that the owner could choose to close the building or convert it to other uses, whereas the mortgagee had no such option and was forced to accept a diminished security interest. The court also rejected the argument that the improvements necessarily increased the value of the property, stating, “It is a speculation, with the chances greatly against their doing so. We may fairly assume that the lien given to the city for the required improvements very materially affects the mortgage security, the property of the mortgagee, and abrogates the contract which he has made with the mortgagor.”

  • ব্যাংক অফ আমেরিকা কর্পোরেশন v. হের্রিক , 275 N.Y. 339 (1937): Jurisdiction Over Non-Residents Requires Prior Seizure of Property

    ব্যাংক অফ আমেরিকা কর্পোরেশন v. হের্রিক, 275 N.Y. 339 (1937)

    In actions against non-residents, a court’s jurisdiction to dispose of property belonging to the non-resident depends on prior seizure of that property through methods like attachment, injunction, or sequestration; otherwise, the judgment is void regarding the property’s disposition.

    Summary

    This case addresses the extent to which New York courts can exercise jurisdiction over the property of non-residents in separation actions. The New York Court of Appeals held that while the court could grant a separation decree against a non-resident defendant served by publication, it lacked jurisdiction to appoint a receiver over the defendant’s property without prior seizure of that property. The ruling emphasizes that due process requires non-residents to receive notice that their property is subject to the court’s control before a judgment affecting that property can be entered.

    Facts

    The plaintiff initiated a separation action against the defendant, a resident of New Jersey. Initially, the plaintiff obtained an ex parte order to sequester the defendant’s property in New York to cover counsel fees and alimony. However, this order was vacated because no personal or constructive service had been made on the defendant. Subsequently, the plaintiff obtained an order for service by publication, and after such service, a default judgment was entered. This judgment decreed the separation, allowed the plaintiff to apply for alimony and expenses from the defendant’s New York property, appointed a receiver to manage the property, and enjoined the defendant from disposing of it.

    Procedural History

    The plaintiff initially obtained an ex parte order for sequestration, which was later vacated by the lower court. After service by publication and a default judgment, the lower court issued a judgment including separation terms and receivership provisions. The defendant appealed the provisions related to the receivership. The appellate division affirmed this order. The case then reached the New York Court of Appeals.

    Issue(s)

    Whether a New York court, in a separation action against a non-resident served by publication, has jurisdiction to appoint a receiver and dispose of the non-resident’s property within the state without prior seizure of that property through attachment, injunction, or sequestration.

    Holding

    No, because the court’s power to dispose of a non-resident’s property depends on establishing jurisdiction over the property before judgment through some form of seizure, ensuring the non-resident has notice and an opportunity to protect their interests.

    Court’s Reasoning

    The Court of Appeals relied on the principle that while New York courts have jurisdiction to determine the marital status of its citizens, even when the other party is a non-resident served by publication, this jurisdiction does not automatically extend to the non-resident’s property. The court emphasized that due process requires a prior seizure of the property to give the non-resident notice that their property rights are at stake. The court cited Helme v. Buckelew and Pennoyer v. Neff to support the requirement of prior seizure. The court stated, “It must, therefore, appear before a judgment is entered purporting to deal with a non-resident’s property, that by attachment, by injunction, by sequestration, in some manner, the court has laid hands upon his property within the State.” Without such prior action, the court lacks jurisdiction to appoint a receiver or otherwise dispose of the non-resident’s assets. The court distinguished between the right to decree a separation and the right to dispose of property, asserting they are separate and distinct. The absence of prior seizure was a fundamental flaw that could not be cured by provisions for later notice. The court reversed the lower court’s judgment regarding the property provisions.

  • People ex rel. Loeser v. Board of Education, 224 N.Y. 474 (1918): Proper Procedure Required to Terminate Probationary Employment

    People ex rel. Loeser v. Board of Education, 224 N.Y. 474 (1918)

    A probationary employee is entitled to permanent employment if they are retained beyond their probationary period without proper notice of unsatisfactory performance from the appropriate appointing authority.

    Summary

    Loeser, a probationary clerk for the Board of Education, was effectively retained beyond his probationary period without proper notice of unsatisfactory performance. Although a committee recommended his termination, the Board of Education, which held the power of appointment and removal, did not ratify this decision until after the probationary period ended. The court held that because the Board’s ratification occurred after the probationary term, Loeser’s right to the position had vested, and he was entitled to reinstatement. The case underscores the importance of adhering to procedural requirements for terminating probationary employment and clarifies that retention without proper notice equates to a permanent appointment.

    Facts

    The Board of Education appointed Loeser as a clerk for a probationary period.
    The Board’s bylaws authorized a committee on supplies to appoint clerks, subject to Board confirmation.
    The bylaws also empowered the committee to conduct trials of clerks and report its conclusions to the Board.
    The committee recommended Loeser’s termination, but the Board did not ratify this decision until after his probationary period ended.
    Loeser was subsequently removed from his position.

    Procedural History

    Loeser sought reinstatement to his position.
    The Special Term ruled in favor of Loeser.
    The Appellate Division reversed the Special Term’s decision.
    The New York Court of Appeals reviewed the Appellate Division’s decision.

    Issue(s)

    Whether the probationary period for which the relator was appointed could be terminated under the rules of the municipal civil service commission only by notice from the appointing officer that his conduct or capacity was unsatisfactory to the officer, and for that reason he could not be retained in his position?

    Holding

    Yes, because the Board of Education’s bylaws required the Board, not merely a committee, to make the determination regarding termination of employment. The board of education by its by-laws jealously retained in its own hands the power of removal as well as the power of appointment. The notice necessary to terminate the relator’s employment at the end of the probationary period was not complete until ratified by the board of education.

    Court’s Reasoning

    The Court of Appeals emphasized that the Board of Education, not the committee on supplies, was the appointing officer with the power of removal. The court highlighted that the Board’s bylaws retained the power of removal and appointment. Retention in service without proper notice is equivalent to a permanent appointment. The court reasoned that the Board’s resolution to terminate Loeser after his probationary period expired was ineffective because his rights to the position had already vested.

    “The resolution that the board adopted on June 23, after the probationary period had expired, could not take effect retrospectively, because in the meantime the rights of the relator to the position had become fixed and determined.” The court cited the principle that ratification is ineffective when the rights of a third person have intervened between the act and its ratification, citing Pickering v. Lomax, 145 U. S. 310; Cook v. Tullis, 85 U. S. [18 Wall.] 332; Catholic F. M. Society v. Oussani, 215 N. Y. 1.

    This case is significant because it underscores the importance of strict adherence to procedural requirements in employment matters, particularly when dealing with probationary employees. It emphasizes that the power to terminate employment rests with the designated appointing authority, and any action taken by a subordinate body must be properly ratified before the probationary period expires. This case informs legal reasoning by emphasizing that rights vest when procedures aren’t followed, preventing retroactive action that would strip a person of those rights.

  • Colon v. Lisk, 153 N.Y. 188 (1897): Limits on Police Power and Due Process in Property Seizure

    Colon v. Lisk, 153 N.Y. 188 (1897)

    A statute authorizing the seizure and forfeiture of property used in violation of private rights, without a jury trial and without a clear relation to public health, safety, or welfare, exceeds the state’s police power and violates due process.

    Summary

    This case addresses the constitutionality of a New York statute allowing the summary seizure and sale of vessels interfering with oyster beds, with proceeds going to the state. The Court of Appeals held the statute unconstitutional. The court reasoned that the statute violated the right to a jury trial in forfeiture cases and exceeded the state’s police power by infringing on private property rights without serving a legitimate public interest. The statute was deemed an invalid attempt to regulate private interests under the guise of a police regulation.

    Facts

    The defendants seized a vessel owned by the plaintiff, Colon, pursuant to a New York statute that authorized the seizure and sale of vessels used to interfere with oyster beds. The statute provided for a summary proceeding before a justice of the peace, without a jury trial, to determine whether the vessel had been used in violation of the act. If the justice found a violation, the vessel was to be sold, and the proceeds paid to the state’s fisheries commission.

    Procedural History

    The plaintiff, Colon, sued the defendants for the unlawful seizure of his vessel. The defendants asserted the statute as a defense. The trial court upheld the statute. The Appellate Division reversed, finding the statute unconstitutional. The case then went to the New York Court of Appeals.

    Issue(s)

    1. Whether the statute authorizing the summary seizure and sale of vessels used to interfere with oyster beds violates the constitutional right to a jury trial?
    2. Whether the statute exceeds the state’s police power and violates due process by allowing the confiscation of private property for the protection of private interests without a clear relation to public health, safety, or welfare?

    Holding

    1. Yes, because suits to enforce forfeitures or penalties have been generally tried by a jury and the statute makes no provision for such a trial.
    2. Yes, because the statute does not relate to the health, morals, safety or welfare of the public, but only to the private interests of a particular class of individuals and the means provided are plainly oppressive and amount to an unauthorized confiscation of private property.

    Court’s Reasoning

    The court found the statute unconstitutional on two grounds. First, it violated the constitutional right to a jury trial, which extends to forfeiture cases. The court cited Wynehamer v. People, 13 N.Y. 378, emphasizing that the right to a jury trial extends to new and like cases that may arise after the adoption of the Constitution.

    Second, the court held that the statute exceeded the state’s police power and violated due process. The court emphasized that the police power, while broad, is not unlimited. “To justify the state in thus interposing its authority in behalf of the public it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals.” (citing Lawton v. Steele, 152 U.S. 133, 137). The court reasoned that the statute served only private interests (oyster bed owners) and was unduly oppressive because it allowed for the complete confiscation of property for a potentially minor trespass. The court also noted that the statute did not require any connection between the owner’s actions and the interference with oyster beds.

    The court stated, “Under the mere guise of a statute to protect against wrong, the legislature cannot arbitrarily strike down private rights and invade personal freedom, or confiscate private property.” The court distinguished the statute from legitimate exercises of the police power related to public health, safety, or morals. Since this law solely regulated private interests, the Court found it to be an unconstitutional overreach of the police power.

  • Rice v. Ehele, 55 N.Y. 518 (1874): Enforcing Discovery Orders Requires Notice and a Hearing

    Rice v. Ehele, 55 N.Y. 518 (1874)

    An order striking out a defendant’s answer and precluding them from any defense in an action requires notice and an opportunity to be heard, even if a prior conditional order threatened such action upon non-compliance with discovery.

    Summary

    This case addresses the due process requirements for enforcing discovery orders. The New York Court of Appeals held that striking a defendant’s answer and precluding their defense requires notice and an opportunity to be heard, even if a prior order conditionally threatened such action for failing to produce documents. The initial order was deemed an alternative, requiring proof of non-compliance before an absolute order could be issued. The court emphasized that the right to defend an action cannot be taken away without a hearing, and neither a general rule nor an anticipatory order can substitute for proper notice and a chance to be heard.

    Facts

    The plaintiff sought discovery of books and documents from the defendants. An initial order was issued directing the defendants to produce the documents within a specific timeframe. The order included an alternative provision: if the defendants failed to produce the books within the given time, their answer would be stricken, and they would be precluded from defending the action, unless they obtained an order to show cause explaining their non-compliance.

    Procedural History

    Justice James initially granted the order for discovery on March 5, 1872. Justice Doolittle subsequently issued an order to show cause on April 11, 1872, at the defendants’ request. Ultimately, Justice Doolittle then struck the defendants’ answer on May 20, 1872, precluding their defense. The defendants appealed this final order, which was taken *ex parte*, after a motion to set aside was denied.

    Issue(s)

    Whether an order striking a defendant’s answer and precluding them from any defense, based on a failure to comply with a prior discovery order, is valid if issued without notice and an opportunity for the defendant to be heard.

    Holding

    Yes, because after a party has appeared and pleaded in an action, they are entitled to notice and have a right to be heard before the granting of an order so important as one striking out their pleading and precluding them from any defense therein.

    Court’s Reasoning

    The court reasoned that the initial order was not absolute and final but rather an alternative. Before the order could become absolute, the defendants must have failed to comply with its requirements, and the court must have legal information thereof. The court found that even with the initial conditional order, the defendants were entitled to notice and an opportunity to be heard before the court issued a final order striking their answer. The court relied on established legal principles of due process and statutory interpretation of the Revised Statutes regarding discovery procedures. The court noted the importance of giving the party the right to show that an order should not be made absolute against him. The court cited Commissioners of Kinderhook v. Clau, 15 J.R., 537, emphasizing that facts are generally shown to the court upon notice when parties have appeared and are litigating. The court also determined that the general rules established by the Supreme Court could not supersede the statutory rights of parties to notice and a hearing. The Court stated, “Our opinion is, that the right to prosecute, or to plead in or defend an action, may not be taken away without a hearing, and that neither a general rule nor an anticipatory order, will stand in the place of notice and opportunity to be heard.”