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COLUMBIA LIBRARIES OFFSITE AVERY FINE ARTS RESTRICTED
AR01392964
History of the Court of Common Pleas.
YORK
1
NEW PLEAS OF
Ex Libris
SEYMOUR DURST
t' Fort nieuw Amsterdam op de Manhatans
FORT NEW AMSTERDAM
(NEW YORK), 1651
When you leave, please leave this book Because it has been said "Ever'thing comes t' him who waits Except a loaned book."
AVERY ARCHITECTURAL AND FINE ARTS LIBRARY
GIFT OF SEYMOUR B. DURST OLD YORK LIBRARY
This Edition is printed from type and is limited to Three Hundred Copies. No. 43
HISTORY OF THE
Court of Common Pleas
OF THE
CITY AND COUNTY OF NEW YORK
WITH FULL REPORTS OF ALL
IMPORTANT PROCEEDINGS
. BY -
JAMES WILTON BROOKS, LL.D. OF THE NEW YORK BAR
NEW YORK PUBLISHED BY SUBSCRIPTION 1896
OFFSITE KF 355 NA (37
COPYRIGHT 1896 BY JAMES WILTON BROOKS
PRESS OF WERNER, SANFORD & CO., 108 EAST 16TH STREET, NEW YORK.
PREFACE.
During 1895 the writer contributed a number of articles to the New York press. One of these entitled "End of the Common Pleas," was published in the Sun of May 19th. This book is the sequence of that article. It is not a law treatise. The decisions of no Court have been better reported than those of the Court of Common Pleas of the City and County of New York. It treats of the personal side of the Court, and is in a measure, therefore, supplementary to the Reports. The writer may have erred in dealing so little with the many interesting trials, decisions and questions of law which have arisen and have been adjudicated during the life of this Court. He has been frequently tempted also to include such stories and anecdotes as have come within his knowledge, and they have been many, but has refrained because he wished rather to produce a work which should be dignified and in keeping with the spirit of one of the oldest, if not the oldest, Court our people have known.
The "Minutes" are gone into at some length, because the proceedings covered by them are historical, and for the reason that this part of the history of the Court has nowhere else been printed.
Sketches of all, and portraits of twenty-one of the twenty-three Judges identified with the later history of the Court, will be found within these covers. There are also portraits of many whose names appear in the text. Without the peculiar experiences incident to the collecting of biographical data, there can be no conception of the amount of labor involved. The simple note in the appendix concerning Judge Inglis gives little or no idea of the amount of time and inquiry devoted to obtaining the material for his sketch, and yet scarce half a century has passed since he sat on the bench.
The author wishes to gratefully acknowledge the great assist-
5
ance rendered to him by Chief Justice Joseph F. Daly and by the Associate Judges of the Court. His grateful acknowledgments are due to the former Chief Justice Charles P. Daly, to Judges George C. Barrett, George L. Ingraham, Frederick W. Loew, George M. Van Hoesen, to Mr. Nathaniel Jarvis, Jr., and to the rela- tives of several of the Judges of the Court. Their aid has enabled him to obtain data not otherwise available, and this is especially true in regard to the biographies of those who are gone. He takes this opportunity also to particularly thank his friend, Mr. James E. Homans, for his help in the arranging of manuscript and reading of proofs, and for many suggestions of value. Most of the portraits have been drawn especially for this volume by Mr. B. F. William- son, and others are reproduced through the courtesy of the publishers of the "National Cyclopedia of American Biography."
The work which the Court has accomplished has now become a matter of history. The future alone will determine whether the action of the people, through their delegates in the Constitutional Convention of 1894, and subsequently at the polls, was wise or unwise. The change has been brought about, so to speak, not from the bottom up, but from the top downward. No popular demand was heard. The necessity of relieving the New York Court of Appeals from its enormous pressure of work was the cause of the consolidation of the superior local Courts with the Supreme Court. The immediate result is the increased number of Judges and the formation of the Appellate Divisions of the Supreme Court, which not only hold the authority of the former General Terms, but by reason of the finality of their decisions will be possessed of great public significance.
New York, July Ist. 1896.
JAMES WILTON BROOKS.
6
CONTENTS.
PAGE The Court of Common Pleas during the Dutch Domination 9 The English Period . 16
Later History of the Court 22
MINUTES OF THE COURT.
Impeachment of DAVID M. COWDREY 36
Trial of JOHN M. BLOODGOOD . 37
Trial of HENRY W. MERRITT .
Trial of JUSTICE MILN PARKER 37
40
Trial of JUSTICE WILLIAM WILEY 41
Trial of JUSTICES MATZEL, PARKER and EPHRAIM STEVENS 43
Complaints against JUSTICES HASKELL and DRINKER 50
Trial of JUSTICE WILLIAM W. DRINKER
53
Trial of JUSTICE PATRICK G. DUFFY 57
Trial of JUSTICE PATRICK DIVVER . 59
BIOGRAPHICAL SKETCHES OF THE JUDGES.
JOHN TREAT IRVING 61
MICHAEL ULSHOEFFER 64
DANIEL P. INGRAHAM 68
WILLIAM INGLIS .
70
CHARLES P. DALY
77 83
LEWIS B. WOODRUFF
JOHN R. BRADY . 87
HENRY HILTON . 90 ALBERT CARDOZO 94
HOOPER C. VAN VORST 95
GEORGE C. BARRETT . 97
FREDERICK W. LOEW 99
7
CHARLES H. VAN BRUNT 103
JOSEPH F. DALY . 105
HAMILTON W. ROBINSON 109 II2
RICHARD L. LARREMORE
GEORGE M. VAN HOESEN II6
MILES BEACH .
.
II9
HENRY W. ALLEN I21 HENRY W. BOOKSTAVER 123
HENRY BISCHOFF, JR. 125 127
ROGER A. PRYOR .
LEONARD A. GIEGERICH . I30 I32
New Organization of the Court of Common Pleas, 1870
Proceedings on the Death of JUDGE HAMILTON W. ROBINSON,
I879 . I39
Proceedings on the Retirement of CHIEF JUSTICE CHARLES P. DALY, 1885 . 159
Proceedings on the Presentation of a Memorial Tablet of JUDGE HAMILTON W. ROBINSON, 1895. 180 Proceedings on the Closing of the Existence of the Court of Common Pleas, 1895 185
Appendix . 239
8
THE COURT OF COMMON PLEAS DURING THE DUTCH DOMINATION.
T HE Court of Common Pleas, founded in 1686, in the City of New York, extended in 1691 through- out the State, restricted again in 1846 to the City of New York, and finally in accordance with the amended State Constitution of 1894, passing out of existence on the thirty-first of December, 1895, was the oldest judi- cial tribunal in the State of New York. It succeeded " The Worshipful Court of the Schout, Burgomasters and Schepens," which was established in 1653, and may thus be said to have had a continuous existence of nearly two centuries and a half. It was twice as old as the nation. In its passing away may be seen the severance of one of the last links which bound our present to the old days when the language of our city was Dutch, when its Courts were Dutch, and when its law came straight from Holland.
Though the Court of Common Pleas of the City and County of New York was not established till towards the end of the seventeenth century, the prior judicial history of the State of New York is well worth a sum- mary.
No provision seems to have been made for several years for the administration of justice in the colony es- tablished by the West India Company in 1623, on Man- hattan Island. Presently, however, in 1626, Peter
9
Minuit, the first Governor, surrounded himself with a council of five, which became invested with all powers, judicial, legislative and executive. An official, well known in Holland as the "Schout," was attached to this body.
The Governor, the Schout and the Council were sub- ject to the supervision and appellate jurisdiction of the authorities at Amsterdam.
The Council continued to administer justice during the official tenure of Minuit and of his successor, Van Twiller, a period of eleven years. Its records have been lost.
Whatever were the duties of the Governor and his Council of Five, there can be little doubt but that almost everything conceivable, except judicial decision, was entrusted to the " Schout Fiscal." He combined in himself the power of a public prosecutor and the ex- ecutive duties of a sheriff. He was far more than either or both these functionaries according to any current understanding. It was his duty, under the orders of the Governor's Council, to arrest and arraign in behalf of the Company all persons accused of crime; to superin- tend the trial and see to the proper carrying out of the sentence.
Such was the unbiased nature of this primitive Court, however, that the Schout must note all evidence for as well as against the prisoner, and see to it that no facts were suppressed on either side. He was also required to keep a strict account of all information taken by him, and of all criminal trials, and regularly transmit reports to the Company's main offices in Holland. And his duties were further framed so as to make him the pro-
tector and custodian of all prisoners, whom he was obliged at the earliest opportunity, to bring to trial. Prisoners, whether innocent or guilty, were not to be allowed to languish in jail.
His duties further obliged him to act as chief of po- lice, or general constable, in seeing to the execution of all placards, ordinances, resolutions and regulations of the States General, as well in Court as out of it.
In some towns of Holland the Schout was the chief officer of the Board of Burgomasters. He convoked all Courts, but took no further part in the proceedings ex- cept to count the votes. Nor had he any voice in the deliberations, unless as public prosecutor, when he was obliged to leave the bench to the senior burgomaster. He was an officer somewhat analogous to the speaker of our legislative assemblies, or the moderator of the " town meeting " in the good old days.
In 1630 Patroon Courts were established, local Courts where the Patroon exercised within his territory unlimit- ed civil and criminal jurisdiction. The Patroon had even power of life and death. His decisions, however, within certain limits, were subject to an appeal to the Governor of New Amsterdam.
Thus matters went on with more or less variation un- til the impetuous, hot-tempered but forceful Peter Stuy- vesant came as governor in 1647. Immediately on his arrival he established a Court of Justice whose jurisdic- tion was certainly broad enough, for it was empowered to decide "all cases whatsoever," subject only to the mild restriction of practically referring everything of any importance to the governor for his approval. Pop- ular discontent with this tribunal grew apace, and out
II
of the wrangle between the governor and the colonists, which brought about a number of trips to Holland, cov- ered a number of years and abounded in dramatic inci- dents, grew " The Worshipful Court of the Schout, Burgomaster and Schepens." This tribunal consisted of the Schout, four Burgomasters and nine Schepens.
The Burgomasters took turns among themselves, each for a term of three months to attend at the City Hall for the despatch of public business. Their office, like that of the Schout, was mainly administrative. The duties of the Schepens were entirely judicial, having jurisdiction of both civil and criminal causes. The three orders of officers, however, formed a " College," and enacted the laws and ordinances for the city somewhat, likely, after the "General Court " of the Colony of Massachusetts, and were known as a body under the title of the " Lords of the Court of the City of New Amsterdam." Such a " College " was pre- sided over by the Schout in the old country, but in New Amsterdam, either a president duly chosen or the senior Burgomaster assumed the dignity.
It seems really remarkable that so complicated and imposing an institution should have been deemed essential for the relatively small and insignificant City of New Amsterdam. Nevertheless, this body was really an instrument of peace rather than of strife.
If to-day an action is brought before our judiciary, it is fought as it were inch by inch by the opposing coun- sel. The judgment when obtained, is enforced to the uttermost farthing. The cause may go to a referee, but his duties are simply those as it were of an umpire. Nor does our law make any account of the defendant,
12
Cf finns font
Parwallander Colin
John Jay
Ja Duane
unless the defendant looks out for himself. It was different in old New Amsterdam; the Court was of so Arcadian a character, so utterly pledged to the eccentric notion that all men are somehow broth- ers, or if not that they ought to be, that it was loath to exercise its judicial authority; to enforce the execution of justice. It was a Court of conciliation, a begetter of harmony, which from its very pomposity and cere- monialism was all the more potent as authority to com- pel the resumption of friendly relations. If a cause were brought before it, each party stated his case to the best of his ability and then the judges rendered their decision on the facts, or appointed arbitrators to bring the oppo- nents together. These arbitrators were appointed to review the matter thoroughly and agree upon some basis of compromise which was usually accepted by both parties. Says Chief Justice Charles P. Daly, in his His- tory of the Judicial Tribunals of New York, from 1623 to 1846 : " It is worthy of remark that though the amount involved was frequently considerable, appeals to the Court from the decision of the arbitrators were exceedingly rare. Indeed, the first appeal to be found upon the records was brought by a stranger."
If, however, the opponents differed in their version of facts, they were put under oath to testify, and if the discrepancy still remained, witnesses were called in, affi- davits presented or depositions taken, which were duly presented on the next court day.
The defendant was also, like the female sex with the English common law, the especial "favorite " of the Court. Court was held at least every two weeks, and frequently every week. When the case was first en-
I3
tered an officer known as the Court Messenger, at the request of the one aggrieved, verbally summoned the defendant to appear at the next court day. If the de- fendant failed to appear he lost the right to make any objection to the jurisdiction of the Court, and incurred the cost of the summons. Failing to appear on the first court day thereafter, he was again summoned; when, failing to appear, he incurred additional costs, lost the right to apply for adjournments or delays, or to make any " dilatory exceptions" whatsoever. But the Court was still long-suffering, and like an affectionate parent of a phenominally prodigal child, again summoned, and be- sought him to look after his own personal interests; although in failing for the third time to heed the kindly admonitions, he lost all power of appeal and all right to review the case. Yetif the Court really believed his pres- ence essential to his own well-being, as well as to the good name of justice in the colony, a fourth citation might be issued in the nature of an arrest, and he be " haled " before the august assemblage and compelled to defend himself.
It was customary to appear on the first citation. If the matter involved was intricate, or it was difficult to get at the truth, it was the practice to refer the matter to arbitrators, who were always instructed to bring about a reconciliation if they could. These references were frequent upon every court day and, in fact, the chief business of the Tribunal was in acting as a Court of Conciliation.
Then the arbitrators went to work, but if no recon- ciliation could be effected, the case was again brought to Court by the dissatisfied party and the final decision
I4
was made. When judgment was rendered for a sum of money, time was given for payment, usually fourteen days for the discharge of one-half, and the remainder to be paid within a month. If at the expiration of the time the debtor had not paid, the Schout, or more often the Court Messenger, went to him, exhibited a copy of the sentence and also his wand of office, which was a bunch of thorns, and summoned him to settle the matter within twenty-four hours. If the debt was not liquidated, a second visit was made, still another twenty- four hours were allowed, and then at the expiration of the forty-eight hours, the delinquent's movable goods were seized and after an allotted time, six days, were sold at public auction.
Greater formalities were required in the sale of real estate. The manner of selling was peculiar. The offi- cer lighted a candle; the bidding went on while it was burning; he who had offered the most at the extinction of the candle was the purchaser.
The Dutch law, though on the whole infinitely supe- rior to the more technical and artificial system intro- duced by their English successors, was a kind of irreg- ular mosaic, and it is not surprising that the Governor and his Burgomaster and his Schout and his Schepens were continually in hot water.
15
THE ENGLISH PERIOD.
In 1664 the Colony passed into the hands of the En- glish, and while the gradual development of the legal procedure during the period from 1664 to the date of the Charter, which takes its name from Governor Don- gan and which was granted to the City of New York in 1686, is extremely interesting, the merest statement of facts will suffice.
Established in the City of New York in 1686, a Court of Common Pleas was created in each county through- out the State by the Act of 1691. The judges and clerks were in general, appointed by the Governor, and held office during his pleasure or so long as their own be- havior was good.
The Court had cognizance in all actions, real, person- al and mixed, where the amount involved exceeded five English pounds. Its errors were corrected in the first instance, by the Supreme Court, to which appeals were allowed for any judgment where the amount involved exceeded the sum of twenty English pounds, or about one hundred dollars of our money.
The Court of Common Pleas in the City of New York was known for many years, in fact until 1821, under its original Dutch name, and was called "The Mayor's Court." Its criminal branch was known as "The Court of Sessions."
Until the end of the Dutch domination, and even long
I6
afterward, the governors of the colony counted it a right to preside in Court and to order the affairs of justice, and this was a particular embarrassment of the cause, not only because they knew no law, but also because some of them seem to have been fitter subjects for its discriminations than interpreters of its principles. In- deed, most of them were adventurers, pure and simple; men whose careers had been "unfortunate" on the other side, and who had come to the New World to begin again.
In addition to their salary, the governors claimed and received a large income in fees or perquisites for ar- ranging patents or grants in land, and, on account of this malfeasance the Crown was constantly defrauded, while they, its servants, set worthy examples to the ring-politicians of later generations. Yet while their understanding of the law was extremely "liberal," there was always fear of that dreadful bogey the " re- former," who might some day disturb the peace of the colonists and instigate proceedings in the name of the Crown to void the grants thus fraudulently made. This fear was the real upshot of the almost frantic opposi- tion of the colonists to the establishment of the Court of Chancery, or any court of equity whatsoever, for had some wealthy Knickerbocker been sued to make a test case, it is probable that the majority would speedilly have found themselves sans house, sans land, sans patent, sans everything; and there had been fewer vast fortunes to accrue from New York real estate holdings.
This then was a bond of sympathy and common cause between the colonists and their often rascally govern- ors, which rendered the former only too thankful to
17
bear any forms of tyranny rather than the dread assizes of the Court of Chancery. None the less, the Court came, remaining during many generations; and as the colonists had evidently feared, the governors too often filled the office of Chancellor.
Some of the colonial governors had the honesty to acknowledge their ignorance of the law and behave ac- cordingly. Thus John Montgomerie, who became gov- ernor in 1728, positively declined to sit, and when or- dered to do so on the authority of the Crown, acquiesced with all unwillingness, encouraging the learned counsel on either side by informing them that he knew nothing whatever of law, but would be pleased to hear them talk and might " patch up" a decision sooner or later. As a matter of fact, he gave but one decree and issued but three orders, with the help of his counsel; and died in 1731. He was followed by several persons who either from their great learning or intense ignorance, even of ignorance itself, rushed in where their predecessors had feared to tread and rendered decisions at haphazard, sometimes to the consternation of the worthy counsel- lors and occasionally to the " vindication of the perse- cuted."
So matters continued with more or less regularity until Sir Charles Hardy became governor in 1755. Hardy had been a seaman by profession, and having been knighted for some service or other to the mother country, was sent to New York Colony to enjoy his laurels in quiet. He was informad on arriving that it was necessary for him as governor to sit in chancery; and having heretofore overcome many difficulties, was nothing daunted, and sat. But his honest heart was
I8
sorely tried by the broadside of demurrers launched at him by four learned counsellors. " Gentlemen," he cried, " my knowledge relates to the sea; that is my sphere. If you want to know when the wind and tide will suit for going to Sandy Hook, I can tell you; but what can the captain of a ship know about demurrers ? If you dispute about a fact I can look into the deposi- tions and perhaps tell you who has the best of it; but I know nothing of your points of law."
Hardy later tried to hear a case of fact only, but failed so signally that he called in the three justices of the Supreme Court to assist him; and thereafter they discharged the duties of Chancellor for him.
One of the governors of New York, Sir Henry Moore Bart, who was appointed executive in 1765, unfortu- nately died in 1769, leaving a number of patents unex- ecuted to the total value in commissions of something like 10,000 pounds. None more thoroughly appre- ciated the opportunity than Cadwallader Colden, who had through several administrations exercised the office of lieutenant-governor and was conversant with the " duties " of the executive office. He at once assumed the duties of governor pro tem. With pertinacious in- dustry he worked literally night and day on the matter and had finally issued the last patent.
The succeeding governor, John Murray, further known by the title of Lord Dunmore, straightway he landed in his realm, made formal demand on Colden for "a moiety or one half part " of all fees, perquisites and emoluments that had accrued during his year as acting governor, and was of course refused.
Dunmore, however, was a man of ready expedients,
19
and friendly persuasion having failed, proceeded to insti- tute proceedings against his lieutenant after the most approved burlesque fashion. He ordered the attorney general to file a bill against Colden in the Court of Chancery where the governor was sole judge, and directed that it should be in the name of the Crown.
Colden, nevertheless, was not at all intimidated by these drastic measures, but deliberately set about em- ploying counsel to plead his case. He found an attor- ney, by name James Duane, subsequently a judge, who was sufficiently emancipated from the current awe and dread of those in authority, and a good lawyer for that day when good lawyers were apparently few, to argue his case. At the day of the trial Lord Dunmore took his seat in the capacity of Chancellor and despite that Duane showed conclusively in his argument that the suit could not be maintained, would allow nothing, not even legal principles to thwart the "rights of the Crown." The attorney-general and his colleague, Smith, the historian of the Court, argued soably on the other side as to impress the worthy Colden most unfa- vorably. He is quoted as saying of Smith, that he dis- played "an easiness of principles that enabled him to affirm, deny or pervert anything, with a degree of con- fidence that might deceive the unwary."
Even Dunmore seemed to have considered that his (the Crown's) case had been argued too well-been over- argued, in fact-and in spite of his inclination to reward the talents of Smith, found himself unexpectedly faced with the unquestioned principles of law and equity. He pretended to consider the case one of such moment as to require some little review and consideration, appoint-
20
ing the following Thursday for the rendering of his de- cision. Thursday came, and the matter was adjourned a fortnight. Meanwhile, he and his advisers busily consulted law and precedent, but in vain. Then doubt- less in confidence of his official prestige the cause was referred to the four judges of the Supreme Court. They presently unanimously decided that Duane's demurrer was well taken and that the suit could not be main- tained.
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