Matter of Friedel v. Board of Regents

73 N.E.2d 545, 296 N.Y. 347, 1947 N.Y. LEXIS 921
New York Court of Appeals·Decided May 22, 1947·Published·Cited by 40 cases

Opinion

Desmond, J.

Petitioner, a physician, was, after a trial conducted under the procedures described in section 1265 of the Education Law, found guilty of two violations of subdivision 2 of section 1264 of that Law (undertaking or engaging to perform criminal abortions), and suspended from the practice of medicine for six months. The hearings in the matter were held, pursuant to statute, before a subcommittee of the Committee on Grievances, a body of physicians (see § 1265) and the suspension was by the respondent Board of Regents, which approved the report and findings of the committee. On appeal to the Appellate Division, Third Department, that court reversed the determination and remitted the matter to the Board of Regents. The Appellate Division’s Per Curiam opinion, and the concurring memorandum of one of the justices, : how that the reversal was because of alleged illegal restriction, by the subcommittee, of the cross-examination by petitioner’s counsel of the board’s paid investigators, who were the principal witnesses against petitioner. The Board of Regents appealed to this court, stipulating for order absolute in the event of affirmance, under subdivision 3 of section 588 of the Civil Practice Act. (See Matter of Fpstein v. Board, of Regents, 295 N. Y. 154, 157.)

No assertion is made here that the proof was inadequate to support the determination of guilt. The whole question is as to the legality of rulings made by the subcommittee, which rulings had the effect of preventing or restricting cross-examination of the investigators, in certain particulars. The Appellate Division opinions do not disclose just which ruling of the subcommittee that court considered erroneous. However, counsel in their briefs here list for us the objections to cross-examination which were sustained at the hearings, and we take it that the Appellate Division found material error in some of those rulings.

The curtailed cross-examinations were those in which petitioner attacked the evidence given by four women, part-time employees of the State Education Department, who testified *351 to two instances in which petitioner, according to the witnesses, agreed to perform illegal abortions. Their versions of the facts were, at the hearings before the subcommittee, strongly attacked by contrary proof and by extended and searching cross-examination. In the course of that cross-examination the chairman of the subcommittee sustained objections to questions which sought to elicit from one or the other of the investigator-witnesses answers to the following:

1. Whether the witnesses went to petitioner’s office and made the alleged arrangement with him in order to “ trap ” petitioner or to get him to “ commit himself with respect to an abortion ”? The witnesses had testified in great detail as to their employment by the State Education Department, their instructions from their superiors, the methods they used, and their purposes in approaching petitioner. Answers to the stricken questions would merely have put labels on conduct already sufficiently described, and so would have added nothing to the record.

2. Whether the witnesses knew that if they brought in such evidence there would be a likelihood of punishment to be meted out to the Doctor ”? We make the same comments as in No. 1 above.

3. What were the names of three physicians, not connected with this case, who had been investigated by one of the witnesses in 1943? The triers of the fact were well within their rights in preventing any such disclosure (see Great Western Turnpike Co. v. Loomis, 32 N. Y. 127; La Beau v. People, 34 N. Y. 223).

4. Who was the physician (not otherwise connected with the case) who furnished one of the investigators with a urine sample used by the investigator as part of the deception practised by her on petitioner? We think this effort to get the name of that other physician was properly thwarted by the subcommittee, for the reasons given in No. 3 above, and under the subcommittee’s discretionary power to limit cross-examination, to which power we shall refer below.

5. Whether one of the witnesses had been engaged to be married to her present husband before her divorce from her former husband, and as to whether the husband of another witness knew that she permitted the physicians under investigation *352 to make examinations of her person? The first question was properly stricken under the rule of the La Beau case {supra) as being cross-examination on matters degrading to the witness. We think both questions were attempted incursions into the marital relations of the witnesses, matters surely not so material to the transactions under investigation as to make it error of law to exclude the questions.

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Matter of Friedel v. Board of Regents, 73 N.E.2d 545, 296 N.Y. 347, 1947 N.Y. LEXIS 921 (N.Y. 1947).

73 N.E.2d 545 (Matter of Friedel v. Board of Regents) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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