Court of Appeals of New York

“ Section 589 of the New York Civil Practice Act provides inter alia that appeals from nonfinal orders can only be taken to the Court of Appeals by leave of the Appellate Division upon certified questions. The petitioner at no time applied to the Appellate Division for such permission. ”

“ In coucluding that petitioner should be disbarred for reliance upon the privilege against self-incrimination, the New York Court of Appeals expressly recognized the right of every citizen, under New York law, to refuse to give self-incriminating testimony. ”

“ There is no indication in the opinion of the New York Court of Appeals that that remedy is inappropriate on the facts of this case.↑ The fact that appellant may petition the New York courts for discretionary relief under § 2603 of the New York Public Authorities Law does not cure the defect. For appellant's claim is that its disqualification was improper, and that it was penalized pursuant to an unconstitutional statute. ”

“ The rule of law laid down by the New York courts is applicable to all alike, and even if the view of the court of appeals respecting the question was wrong, it was an error which we have no power to review. ”

“ A popular impression exists at the present time that a man convicted of murder has but to appeal his case on some technical ground in order to secure a reversal, and thus escape the consequences of his crime. How wide of the mark such a belief may be, at least so far as one locality is concerned, is shown by the fact that in New York State, from 1887 to 1907, there were 169 decisions by the Court of Appeals on appeals from convictions of murder in the first degree, out of which there were only twenty-nine reversals. ”

“ The same rule which is being used here to cut off petitioner's appeal says that when a defendant not represented by counsel is sentenced, 'the defendant shall be advised of his right to appeal and if he so requests, the clerk shall prepare and file' the notice of appeal for the defendant. Here petitioner took the equivalent steps: he executed the notice of appeal for his lawyer on Thursday. But the lawyer's associate fell ill, and the Court of Appeals treated Saturday in a way most apt to confuse and trap even a perfectly healthy New York lawyer familiar with local New York practice. ”

“ The first question to be considered is one of jurisdiction. It is insisted, in behalf of the defendants in error, that the judgment of the New York Court of Appeals is not subject to review in this court. ”

“ Furthermore, notwithstanding a few broad words relied upon by the plaintiffs in error, we doubt if the court of appeals meant to lay down the proposition which we have said that we would not discuss, or to go further than to decide that the whole evidence was not sufficient to entitle the plaintiffs to go to the jury in an action for malicious prosecution, as that action is limited in New York. ”

“ Now in New York those worthy, well-meaning, elderly judges of the court of appeals have never had such an experience in their lives.
They don’t know. They don’t visualize to themselves how that brakeman feels. They are not able to present to their minds the risks incident to the ordinary, everyday performance of his duties. ”