In re Costello

202 Misc. 51, 107 N.Y.S.2d 726, 1951 N.Y. Misc. LEXIS 2418
CourtNew York Supreme Court
DecidedOctober 9, 1951
StatusPublished
Cited by5 cases

This text of 202 Misc. 51 (In re Costello) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Costello, 202 Misc. 51, 107 N.Y.S.2d 726, 1951 N.Y. Misc. LEXIS 2418 (N.Y. Super. Ct. 1951).

Opinion

McNally, J.

This is a motion to quash a subpoena issued by S. Stanley Kreutzer, Honorary Commissioner of Borough Works.

In the course of hearings before the United States Senate Crime Committee, the petitioner, Frank Costello, testified he had known Angelo A. Simonetti, Secretary to Robert F. Wagner, Jr., President of the Borough of Manhattan, for about ten years and that he might have had dinner and drinks with him at various times. Thereafter Mr. Wagner purported to appoint S. Stanley Kreutzer as Honorary Commissioner of Borough Works to examine into the testimony before the committee regarding the relationship between Costello and Simonetti, to investigate into all matters bearing upon Simonetti’s fitness to continue as secretary to the borough president, to hold public and private hearings, and to report his findings and conclusions. Costello has been served with a subpoena, signed by Mr. Kreutzer, directing his appearance for the purpose of testifying in the investigation.

A borough president may appoint and at pleasure remove a commissioner of borough works and other lesser officials. (New York City Charter, § 82, subd. b.) No one questions the right of the president of the borough of Manhattan to remove Simonetti without a hearing. Mr. Wagner’s affidavit in opposition to this motion assigns the following as grounds for the investigation and testimony of the petitioner:

“ Your deponent felt that the public interest required that the facts be ascertained in order that the decision to be ultimately made by him with respect to the continuance in office of the Secretary be based upon testimony and evidence of probative force. If facts existed affecting Mr. Simonetti’s fitness to continue to hold public office, whether favorable or unfavorable, they should be elicited by an appropriate investigation in which sworn testimony may be presented! with an adequate opportunity for full examination.

The consequence of any other action would be to make a determination without competent evidence, facts or testimony. It was your deponent’s desire that a decision to be made by him in the matter so affected with the public interest should be predicated on fact and not be open to the charge that it was arbitrary or capricious.”

The petitioner’s testimony before the United States Senate Crime Committee was under oath. It is not claimed or suggested that the petitioner’s testimony will disclose facts relating to Simonetti other than those developed before the committee. [54]*54Simonetti has not requested that the subpoena to the petitioner be issued; his claim is “ Costello did not say that he was associated with me ”. The concern of the borough president regarding arbitrariness and capriciousness relates to a charge which may be leveled at him by persons other than Simonetti, who appears to be content to accept the action and the decision of the borough president without the benefit of the testimony of Costello.

The question presented is whether under the circumstances here present the honorary commissioner of public works may subpoena the petitioner. No provision authorizing the borough president to conduct investigations of any kind or to issue subpoenas is to be found in the New York City Charter or the Administrative Code, although provisions for investigative powers are expressly granted to the comptroller (Charter, § 93, subd. b); the council (Charter, § 43); the municipal civil service commission (Charter, § 814); the board of education (Charter, § 526); the commissioner of investigation (Charter, § 805); a Justice of the Supreme Court (Charter, § 889); fire department officials (Administrative Code, § 488 [2] -1.0-488[2]-4.0); the police commissioner (Administrative Code, § 434a-14.0), and the commissioner of licenses (Administrative Code, § 773a-7.0). The mayor has the power to subpoena since he is a magistrate (Charter, § 6).

The respondent contends that the issuance of the subpoena is authorized by the provisions of section 406 of the Civil Practice Act which provides for subpoenas by “ a judge, or an arbitrator, referee or other person, or a board or committee * * * heretofore or * * * hereafter expressly authorized by law to hear, try or determine a matter, or to do any other act in an oficial capacity, in relation to which proof may be taken, or the attendance of a person as a witness may be required ” (subd. 1; italics supplied). Is the borough president “ a person * * * expressly authorized by law * * * to do any * * * act in an official capacity, in relation to which proof may be taken ” within the meaning of section 406? The words ‘‘ or the attendance of a person as a witness may be required ” may be disregarded for the very question to be decided is whether a borough president may require the attendance of witnesses.

The only official act of the borough president in relation to which the investigation could conceivably be pertinent is the possible removal of Simonetti as secretary to the borough president. The secretary holds office at the pleasure of the [55]*55borough president (Charter, § 82, subd. c). The secretary may be removed without cause and without any hearing. No claim is made that Simonetti is a veteran or volunteer fireman and the provisions of subdivision 1 of section 22 of the Civil Service Law, which alone provide for hearings as a condition precedent of discharge or removal, are therefore inapplicable. The investigation of Simonetti which the borough president has ordered is purely a matter of grace on his part. No case has been called to the court’s attention or discovered by the court where the power of subpoena has been held to exist for the purpose of taking proof as to whether a person should be discharged or removed, notwithstanding the absence of any statutory requirement that proof be tahen. The furthest the courts appear to have gone is to uphold the power of subpoena for the purposes of a hearing made mandatory by statute (Matter of Reynolds v. Triborough Bridge & Tunnel Authority, 276 App. Div. 388). In that case the petitioner was a war veteran and had an absolute right to a hearing under the provisions of subdivision 1 of section 22 of the Civil Service Law. The court there held that the provisions of section 406 of the Civil Practice Act, coupled with the provisions of the Civil Service Law entitling the petitioner to a hearing conferred upon the respondent the power to issue subpoenas.

In the Reynolds case it is clear that the presence of the requirement of a hearing on stated charges and on due notice in accordance with the provisions of section 22 of the Civil Service Law, together with the enabling provisions of section 406 of the Civil Practice Act, constituted the basis for holding that the respondent had authority to issue subpoenas. At page 392 the court there said: “ The authority, indeed, has not been given, under the Public Authorities Law, general powers to issue subpoenas, such as was given to the Power Authority by the Legislature in section 1006 of the Public Authorities Law. But no general grant of power is necessary in view of the provisions of the Civil Practice Act and of section 22 of the Civil Service Law. The power to try a veteran on charges carries with it the implied power to hear the case on competent evidence and, if necessary, to get the aid of a court of law in procuring the attendance of necessary "witnesses. Of course, this implied power to issue subpoenas applies only to the determination of the charges in hand.” (Italics supplied.)

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Cite This Page — Counsel Stack

Bluebook (online)
202 Misc. 51, 107 N.Y.S.2d 726, 1951 N.Y. Misc. LEXIS 2418, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-costello-nysupct-1951.