PEOPLE v. KROLL
(145 N.E.)

815

[3] It is contended by plaintiff in error The first was a disserthat the court gave to the jury two erroneous instructions. tation upon the duty of the state's attorney which would not in any way tend to enlight

there is nothing in the record tending to show either that the state's attorney, the plaintiff in error, or any person interested in the prosecution or defense of the case was a member of the Ku Klux Klan, or that the Ku Klux Klan was in any manner interest-en the jury as to the law of the case, and ed in the prosecution or defense of the case, or that the members of the organization were antagonistic to or prejudiced against We cannot say that the plaintiff in error. court abused its discretion.

the other was the lengthy and involved instruction upon the question of reasonable An examination of the doubt which has been several times criticised by this court. abstract in the case, however, fails to disComplaint is made by plaintiff in error close that either of these instructions was that the court improperly limited the cross-marked "given" by the court, or that they examination of witnesses called on behalf of were in fact read to the jury. [4] Complaint is made of the refusal of defendant in error, and our attention is called to several specific instances where it is the court to give some of the instructions claimed that error was committed in this which were submitted by plaintiff in error. respect. An examination of the record dis- Some of the instructions refused stated corcloses the fact that in each instance where rect propositions of law, but these proposithe subject-matter of the question was prop- tions were fully covered by the 16 instrucer cross-examination, the question had al- tions which were given, which fully informready been asked and answered on cross-ed the jury as to all the rights of plaintiff examination, and that instead of counsel for plaintiff in error having been limited in his cross-examination of witnesses, very great latitude was given him.

in error.

[5] Counsel for plaintiff in error assigns as error that the court limited the argument in the case to 30 minutes on each side instead of three-quarters of an hour, as reThere was very little maThe issues were

not complicated.

The record shows that much of the time which plaintiff in error's counsel had for argument was consumed in arguing upon irrelevant matters not in evidence, to which the court repeatedly sustainIn this state of the record ed objections. counsel cannot well complain of the limitation.

[2] It is contended by plaintiff in error that the witness who testified that he pur-quested by him. chased two pints of intoxicating liquor from terial evidence in the case. plaintiff in error and paid $2 a pint for it was a man of low character, and that a conviction on the uncorroborated testimony of a man of this character should not be sustained. It very frequently happens that in cases of this kind the witnesses are not perHis testimony sons of very high character. was to a certain extent corroborated by othThe evidence warranted the finding of the er witnesses. The weight to be given to his testimony was a question solely for the ju-jury. No reversible error has been pointed ry, and we would not be warranted, under the evidence in this case, in disturbing their finding.

out to us.

The judgment of the Appellate Court is therefore affirmed.

Judgment affirmed.

(Court of Appeals of New York. Nov. 25, amended by Laws 1916, c. 517, to make special

(145 N.E.)

c. 517, commissioner of accounts subpoenaed | man, and Russell Lord Tarbox, all of New comptroller, directing him to attend and be York City, of counsel), for respondent. examined in connection with employees' retirement system, and requiring production of all securities, cash, etc., held that cash is not a

"book or paper," within meaning of Civil Practice Act, § 406, limiting issuance of subpoena to books and papers, and only in a proper case, and, they being part of public records of city, it was not proper case requiring their production; a "proper case" being made out only where there is ground to believe that production of records will serve purpose which could not be accomplished by examination at public office where records are kept.

LEHMAN, J. Upon motion of the commissioner of accounts of the city of New York, a warrant of attachment has issued against Augustus J. Rinn, the appraiser of real estate in the department of finance of the city of New York, and two warrants of attachment against Charles L. Craig, the comptroller of the city of New York, for their failure to appear at hearings before the commissioner of accounts, in obedience to subwhich the commissioner of accounts has atpoenas which he had caused to be served upon them in three investigations or examinations tempted to institute, pursuant to powers which he claims are vested in him under section 119 of the charter of the city of New

and Phrases, First and Second Series, Proper [Ed. Note. For other definitions, see Words Case; Second Series, Book or Other Paper.] 12. Municipal corporations 169—Provision of subpoena requiring comptroller to produce, exhibits in connection with examination of construction of courthouse, held unenforce-York (Laws 1901, c. 466, as amended by Laws able; "book and paper."

Where commissioner of accounts, under authority of Greater New York Charter, § 119, as amended by Laws 1916, c. 517, issued subpoena directing comptroller to attend and be examined as to "method of construction of courthouse," and "also as to quality and sufficiency of granite furnished by contractor," held that, in view of Civil Practice Act, § 406, limiting issuance of subpoena to "books and papers," and only in a proper case, such provision in subprena was unenforceable, since samples of granite are not "bóoks and papers," and no specific circumstances were shown making out proper case for production of public records. Hiscock, C. J., and McLaughlin and Andrews, JJ., dissenting in part.

1916, c. 517). Motions to vacate the attachments were thereupon made in each proceeding, and these motions have resulted in orders of the Appellate Division denying the motions, but modifying two of the warrants, by striking out provisions requiring the production of documents or other exhibits. Section 119 of the charter provides that:

"It shall be the duty of the commissioner of accounts, once in three months, to make an examination of the receipts and disbursements in the offices of the comptroller and chamberlain, in connection with those of all the departments and officers making returns thereto, and statement of the financial condition of the city report to the mayor a detailed and classified as shown by such examinations.

"He shall also make such special examina

Appeal from Supreme Court, Appellate tions of the accounts and methods of the deDivision, First Department.

In the matter of the applications of David Hirshfield, as Commissioner of Accounts of the City of New York, for warrants of attachment directed against Charles L. Craig, a witness and against Augustus J. Rinn. From orders of Appellate Division, First Department (209 App. Div. 555, 205 N. Y. S. 201), in cases against said Craig modifying and affirming an order of Special Term, denying application to vacate warrant of attachment, and from an order reversing an order of Special Term, continuing proceedings for purpose of taking evidence as to truth of statements contained in certain affidavits, and also from an order in the case against said Rinn, which affirmed an order denying a motion to vacate warrant of attachment, appeals were taken. Reversed in part, and affirmed in part.

partments and offices of the city and of the counties of New York, Richmond, Queens, Kings and Bronx, as the mayor may from time to time direct, and such other examinations as the said commissioner may deem for the best interests of the city, and report to the mayor and the board of aldermen the results thereof. For the purpose of ascertaining facts in connection with these examinations he shall have full power to compel the attendance of witnesses, to administer oaths and to examine such persons as he may deem necessary."

The comptroller urges that, when the Legislature provided for mandatory examinations, every three months, of "the receipts and disbursements in the offices of the comptroller and chamberlain," it intended to limit the inquisitorial power of the commissioner of accounts over the department of finance to such examinations, and that the subsequent clauses, authorizing the commissioner

Charles L. Craig, of New York City, in pro. to make special examinations of the "ac

per.

George P. Nicholson, Corp. Counsel, of New York City (John F. O'Brien, John Leh145 N.E.-52

counts and methods of the departments and offices of the city of New York, and the counties of New York, Richmond, Queens, Kings,

and Bronx," were not intended to give the the offices of the comptroller and chambercommissioner any power to make additional | lain, but the Legislature has seen fit, in adspecial examinations in the department of dition, to give the commissioner a permissive finance at the direction of the mayor, or as power to make special examinations of the the commissioner "may deem for the best accounts and methods of the departments interests of the city." He further urges that and offices of the city of New York, and of the subpoenas have been issued by the com- the counties embraced within the territorial missioner, not for the purpose of obtaining limits of the city, and there is nothing in information in connection with an examina- the language of the statute to suggest that tion undertaken in the best interests of the the Legislature, in using the term “departcity, but for the purpose of harassing and an-ments of the city," meant to exclude the denoying the comptroller, and of obtaining an partment of finance. We may assume that opportunity for unfair attacks upon him.

it was the opinion of the Legislature that The Appellate Division has decided that the mandatory periodic examination would the commissioner's power of examination of provide all such safeguards and information the accounts and methods of the office of as would contribute constantly and normally the comptroller is not limited to the man- to the best interests of the city; yet, on ocdatory periodical examination, and is not ex-casion, further information might be of benehausted when such an examination has been fit to the city and its officers. We may asheld, and that when the commissioner under-sume, also, that ordinarily such information takes a further examination the courts can- could be obtained, without a formal special not permit a prospective witness to challenge examination, by mere request from one pubthe good faith of the commissioner, or to litigate the question of whether the examination has been in fact instituted in the interests of the city.

lic official to another, yet the Legislature might reasonably decide that special examinations in regard to matters pertaining to the accounts of the department of finance might, on occasion, serve a useful purpose; and no possible inference can be drawn from the express command to the commissioner of accounts, to make, periodically, a particular

[1] The question before the courts concerns only the power bestowed by the Legislature upon the commissioner as an administrative officer of the city. We do not pass upon the wisdom of the provision in its pres-examination of matters pertaining to the ac ent form, nor whether it should be extended or limited. The rights or wrongs of any personal or political controversy between the commissioner and the witness he seeks to examine are irrelevant to the determination of the legislative intent when it enacted the statute. We must find, in the language of the statute interpreted, it may be, in the light of established public policy, or of conditions as they existed when the statute was passed, the extent and limitations of the power conferred. Events which have occurred subsequently can have no bearing on this question, and in considering it we brush aside all charges and countercharges embodied either in the affidavits or briefs of the parties.

counts in the comptroller's office, that the Legislature intended that the commissioner's permissive power to make occasional special examinations should not include examinations in this office, as well as the other offices of the city. The fact that until now no commissioner of accounts has ever undertaken to hold any special examination of the department of finance may, perhaps more reasonably, be regarded as evidence sustaining the correctness of the assumption that occasion for the use of this power would rarely arise than as evidence that all previous commissioners of accounts have construed the statute as withholding from them the power to conduct such special examination, should such occasion arise.

[2] It seems to us that the language of [3] We find no force in the claim that unthe statute is clear, and that the Appellate der this construction of the statute the mayDivision correctly decided that this section or can interfere, through the commissioner of the charter conferred upon the commis- of accounts appointed by him, in the adminsioner of accounts the same permissive pow-istration of the comptroller's office, and that er to make special examination of the ac- the independence of the department of counts and methods of the department of finance, which hitherto has been safeguarded finance as was granted to him in regard to as a matter of sound public policy, is diminother departments. The fact that the finan-ished or destroyed. The department of cial accounts of the city would naturally be finance, though not subject to the control of kept in the department of finance might well lead the Legislature to impose upon the commissioner of accounts, as his primary duty, a definite command to make a periodic examination of the receipts and disbursements in

the mayor, is a part of the city government, and its administration, and especially the amount and nature of the public funds in its custody, are matters of concern to the mayor and other officers of the city government.

that the courts will not examine into their
truth. We agree with this conclusion. When
the Legislature authorized the commissioner
to make "such special examinations
as the mayor may from time to time direct,
and such other examination as the said com-
missioner may deem for the best interests
of the city," it made the mayor or the com-
missioner the sole judges of when and
whether such examination should be held.
The right to hold special examinations is
made to depend, not upon the fact that an
examination would be for the best interests
of the city, but upon the fact that the com-
missioner who has been directed to hold it
deems it for the best interests of the city.
The courts cannot assume to pass upon the
good faith of public officers in the perform-
ance of their functions, and any attempt to
pass upon the contention of a proposed wit-

It can hardly be disputed that even inde- the subpoenas have been issued in investigapendent officers of the city must work in co- tions or examinations which have been unoperation, in order to secure proper govern-dertaken, not because the commissioner ment efficiency. Section 119 of the charter deems them for the best interests of the city, does not give the mayor any right to control but because through them he may injure or the actions of the comptroller, or of the annoy the comptroller; and that no process heads of departments, or offices of the city of the court should issue to aid an examinaor the counties named. Some of these offi- tion so undertaken. These allegations are cers are appointed by the mayor, and are sub-denied, and the Appellate Division has held ject, in a sense, to the mayor's control by virtue of other sections of the charter, but other officers, such as the county officers and the presidents of the boroughs, are elected independently, and are in no wise responsible to the mayor for the proper administration of their offices; yet we have consistently held that the commissioner of accounts, appointed by the mayor, has the right to make special examinations of the accounts and methods of their offices. Matter of Hirshfield v. Cook, 227 N. Y. 297, 125 N. E. 504; Matter of Hirshfield v. Hanley, 228 N. Y. 346, 127 N. E. 252; Matter of Hertle (Ahearn) 120 App. Div. 717, 105 N. Y. S. 765, affirmed 190 N. Y. 531, 83 N. E. 1126. The right to examine their accounts and methods implies no right, in either the commissioner or the mayor, to direct changes in the administration of their departments or offices. Its purpose and result is the disclosure of details of the pub-ness, that he should not be compelled to aplic administration which the mayor or the commissioner of accounts finds should be disclosed. The only possible basis of the claim in this case, that the commissioner of accounts' right to examine diminishes or destroys the comptroller's administrative inde-ence with an administrative officer in the perpendence, is that the commissioner of ac- formance of his work. The courts pass no counts might prostitute his powers and so judgment upon questions which the Legislaconduct an examination as to harass the ture, under its constitutional power, has comptroller, and perhaps intimidate him to submitted for decision to administrative ofan extent that would render him practically, ficers, in the performance of purely adminisif not theoretically, subservient to the may-trative functions. The Legislature permits or. The courts will not assume that public the commissioner to decide whether the officers will act dishonestly or dishonorably, examination would be for the best interor use their public trust for private ends, and it cannot be said that the Legislature may not reasonably be presumed to have intended to confer a power which in the hands of an unfaithful public servant, might be used for improper purposes.

pear at an examination because the examination cannot result in any benefit to the city, or is undertaken for reasons other than that the commissioner deems it for the best interests of the city, would result in interfer

The

ests of the city, and to issue subpoenas to witnesses. The courts are given no power to review or set aside such decision. protection of the courts may be invoked only against attempts, in the course of such examinations, to infringe the rights of the citi[4, 5] We have considered, so far, only the zen or to cause him some legal wrong. In construction of the statute, in view of the this proceeding we do not attempt to decide possibility of the abuse by the commissioner the exact point where that protection might of accounts of powers which the commission- be invoked, or where an abuse of the comer claims have been conferred upon him. It missioner's powers might constitute a wrong is now urged upon us that the comptroller, of which the courts will take cognizance. upon the motions to vacate the attachments, has alleged facts which, if true, would tend to show, not merely that there is a theoretical possibility that the commissioner of accounts might abuse his power to examine the accounts and methods of the department of finance, but that he is in fact doing so; that

We do not assume that there is any probability that occasion may arise hereafter for the presentation of such a question to the court. We decide only that the commissioner of accounts has the same power to make special examinations of the accounts and methods of the department of finance as he