Vergari v. Marcus

New York Court of Appeals

Vergari v. Marcus

257 N.E.2d 652, 26 N.Y.2d 764, 309 N.Y.S.2d 204, 1970 N.Y. LEXIS 1566

CourtNew York Court of Appeals

DecidedFebruary 18, 1970

StatusPublished

Cited by6 cases

This text of 257 N.E.2d 652 (Vergari v. Marcus) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Vergari v. Marcus, 257 N.E.2d 652, 26 N.Y.2d 764, 309 N.Y.S.2d 204, 1970 N.Y. LEXIS 1566 (N.Y. 1970).

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Opinion

Memorandum. Cases involving judicial proceedings for forfeiture of penalties were tried by jury before the adoption of the 1846 Constitution (Colon v. Lisk, 13 App. Div. 195, affd. 153 N. Y. 188; see, also, People ex rel. Lemon v. Elmore, 256 N. Y. 489, 493 ; 4 Lincoln, Constitutional History of New York, p. 50; 44 N. Y. Jur., Penalties and Forfeitures, §§ 7, 16). Therefore, section 2 of article I of the State Constitution guarantees the right to a jury trial in this forfeiture proceeding (Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241, 244; Wynehamer v. People, 13 N. Y. 378, 426). Lawton v. Steele (119 N. Y. 226, affd. 152 U. S. 133), permitting the summary destruction of property of small value in order to abate a nuisance, is not applicable. The instant statute does not prohibit trial by jury; indeed it does not detail any of the proceedings to be followed. Hence it was incumbent on the court to provide the appropriate [766]*766proceedings, including a jury trial mandated by the Constitution. The Supreme Court deprived respondent of his constitutional right by failing to afford respondent a jury trial. Accordingly, the order of the Appellate Division should be modified and the case remitted to Supreme Court, Westchester County, for a trial by jury.

Chief Judge Fuld and Judges Scileppi, Bergan, Breitel, Jasen and Gibson concur; Judge Burke taking no part.

Order modified in accordance with the memorandum herein and, as so modified, affirmed, with costs.

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Memorandum. Cases involving judicial proceedings for forfeiture of penalties were tried by jury before the adoption of the 1846 Constitution (Colon v. Lisk, 13 App. Div. 195, affd. 153 N. Y. 188; see, also, People ex rel. Lemon v. Elmore, 256 N. Y. 489, 493 ; 4 Lincoln, Constitutional History of New York, p. 50; 44 N. Y. Jur., Penalties and Forfeitures, §§ 7, 16). Therefore, section 2 of article I of the State Constitution guarantees the right to a jury trial in this forfeiture proceeding (Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241, 244; Wynehamer v. People, 13 N. Y. 378, 426). Lawton v. Steele (119 N. Y. 226, affd. 152 U. S. 133), permitting the summary destruction of property of small value in order to abate a nuisance, is not applicable. The instant statute does not prohibit trial by jury; indeed it does not detail any of the proceedings to be followed. Hence it was incumbent on the court to provide the appropriate [766]*766proceedings, including a jury trial mandated by the Constitution. The Supreme Court deprived respondent of his constitutional right by failing to afford respondent a jury trial. Accordingly, the order of the Appellate Division should be modified and the case remitted to Supreme Court, Westchester County, for a trial by jury.

Chief Judge Fuld and Judges Scileppi, Bergan, Breitel, Jasen and Gibson concur; Judge Burke taking no part.

Order modified in accordance with the memorandum herein and, as so modified, affirmed, with costs.

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Bluebook (online)

257 N.E.2d 652, 26 N.Y.2d 764, 309 N.Y.S.2d 204, 1970 N.Y. LEXIS 1566, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vergari-v-marcus-ny-1970.

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