People ex rel. McCarthy v. Bingham

Appellate Division of the Supreme Court of New York

People ex rel. McCarthy v. Bingham

135 A.D. 351, 120 N.Y.S. 395, 1909 N.Y. App. Div. LEXIS 3967

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 30, 1909

StatusPublished

This text of 135 A.D. 351 (People ex rel. McCarthy v. Bingham) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People ex rel. McCarthy v. Bingham, 135 A.D. 351, 120 N.Y.S. 395, 1909 N.Y. App. Div. LEXIS 3967 (N.Y. Ct. App. 1909).

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Opinion

Per Curiam :

Relator was a policeman of the city of New York, and charges were preferred against him which were served only thirty-eight hours [352]*352before the time of hearing. Rule 36g of the police department requires that notice of trial shall be served not less than forty-eight hours before the hour of trial, exclusive of Sundays, legal holidays and half-holidays. The defendant, when arraigned for trial, asked for an adjournment, which was denied.

Failure to give the prescribed notice is fatal to the proceeding. (People ex rel. Jordan v. Martin, 152 N. Y. 311; People ex rel. Clancy v. Bingham, 123 App. Div. 226.)

There is an exception prescribed by this same rule, and shorter notice may be given where witnesses reside out of the State, or are remote.from the place of trial, or, by reason of sickness or other pressing cause, cannot attend at a later day without great personal detriment or inconvenience. But only the testimony of such witnesses may be taken on such shorter notice, j

In the present case not only was the' testimony of the two nonresident witnesses taken, but the trial was continued by taking the-testimony of resident witnesses' without showing that it was. necessary to take their evidence within such shorter time. In effect, therefore, the trial was had on insufficient notice, and it does not help the defendant that thereafter the relator was granted an adjournment and an opportunity to present such evidence as he might desire. His rights had been fatally violated, and what thereafter transpired did not cure the violation.

The determination of the defendant must be annulled, and the relator’s fine remitted, with ten dollars costs and disbursements.

■ Present — Ingraham, McLaughlin, Laughlin, Houghton and Scott, JJ.

Determination annulled, and relator’s fine remitted,- with ten dollars costs and disbursements. Settle order on notice.'

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Per Curiam :

Relator was a policeman of the city of New York, and charges were preferred against him which were served only thirty-eight hours [352]*352before the time of hearing. Rule 36g of the police department requires that notice of trial shall be served not less than forty-eight hours before the hour of trial, exclusive of Sundays, legal holidays and half-holidays. The defendant, when arraigned for trial, asked for an adjournment, which was denied.

Failure to give the prescribed notice is fatal to the proceeding. (People ex rel. Jordan v. Martin, 152 N. Y. 311; People ex rel. Clancy v. Bingham, 123 App. Div. 226.)

There is an exception prescribed by this same rule, and shorter notice may be given where witnesses reside out of the State, or are remote.from the place of trial, or, by reason of sickness or other pressing cause, cannot attend at a later day without great personal detriment or inconvenience. But only the testimony of such witnesses may be taken on such shorter notice, j

In the present case not only was the' testimony of the two nonresident witnesses taken, but the trial was continued by taking the-testimony of resident witnesses' without showing that it was. necessary to take their evidence within such shorter time. In effect, therefore, the trial was had on insufficient notice, and it does not help the defendant that thereafter the relator was granted an adjournment and an opportunity to present such evidence as he might desire. His rights had been fatally violated, and what thereafter transpired did not cure the violation.

The determination of the defendant must be annulled, and the relator’s fine remitted, with ten dollars costs and disbursements.

■ Present — Ingraham, McLaughlin, Laughlin, Houghton and Scott, JJ.

Determination annulled, and relator’s fine remitted,- with ten dollars costs and disbursements. Settle order on notice.'

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Bluebook (online)

135 A.D. 351, 120 N.Y.S. 395, 1909 N.Y. App. Div. LEXIS 3967, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-mccarthy-v-bingham-nyappdiv-1909.

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