Looking Back On Appeals That Made A Difference

Almost 50 years have elapsed between my first and most recent appearance before the New York Court of Appeals and a recent LEXIS search shows I appeared in 117 cases in that court, arguing about 80 of them.

My maiden appellate argument was in 1963 in Seagirt Realty v. Chazanof.1 Apart from nervousness I still feel before any argument, I was completely at ease standing at the lectern in that beautiful and familiar courtroom where I spent countless hours during the years I was a law clerk to Judge Charles Froessel, learning the fundamentals of appellate advocacy. The case allowed me to use what I had learned about the court's limited scope of review when confronted with affirmed findings of fact. They are binding upon it.2

In 1934, Jacob Landau, sole stockholder and alter ego of the plaintiff, caused it to convey certain property to his son, Alfred, without consideration, to fraudulently conceal it from creditors. In 1945, Jacob filed for bankruptcy, swearing he had no interest in real property. In 1950, Alfred, at his father's request conveyed the property, without consideration, to Jacob's son-in-law, defendant Chazanof, who orally promised to convey it to plaintiff. Defendant executed and delivered a deed to Jacob, which was not recorded and subsequently lost. When defendant refused to execute a replacement deed, plaintiff brought an action to impress a trust on the property and compel defendant to execute and deliver another deed.

Supreme Court entered judgment for plaintiff finding the lost deed had been executed and delivered by defendant and the doctrine of clean hands is limited to the transaction at issue. It stated:

The court will not refuse its aid to a man merely because he has been guilty at some previous time of misconduct unconnected with the matter in litigation. A court of equity is not an avenger at large.

In the instant case, if Jacob was defrauding creditors in 1934 or concealing assets in bankruptcy in 1945, he had already accomplished his purpose. The transfer to the defendant in 1950 was not made to defraud creditors and defendant cannot avoid fulfilling his obligations merely because Jacob may at some time some five to 16 years earlier have been guilty of a fraudulent scheme. The property did not become contraband so that Jacob could never deal with it again.3

A divided Appellate Division reversed on the law and the facts and dismissed the complaint, stating: "Equity will not afford relief where, as here, the real party in interest—the father, through the medium of his corporate entity—comes into court with unclean hands. Were a court of equity to do otherwise it would lend its aid in bringing a fraudulent scheme to fruition."4 The crucial finding, that defendant had executed and delivered a deed to Jacob which was not recorded and mislaid, was affirmed.

I was retained by plaintiff to take the case to the Court of Appeals and saw that the affirmed findings of fact allowed us to present the case without having to refer to the fraudulent conveyance. Plaintiff was simply asking the court to direct defendant to perform a ministerial act—execute and deliver a replacement deed. The majority, over two strong dissents agreed, stating:

When equitable relief is sought, not to enforce an executory obligation arising out of an illegal transaction, but to protect a status of legal ownership, wrongs done by Jacob Landau to creditors in respect of the property at some time prior to the acquisition of the title now in issue may not now be raised by this defendant to defeat otherwise available relief.5

In 1963, I also collaborated in writing the brief for appellant in People v. Post Standard,6 an important and novel freedom of press case in which the publisher of a daily newspaper in Syracuse, was indicted for criminal contempt of court for falsely publishing an alleged statement made by a person in a judicial proceeding in County Court. The statement was that a sergeant on the District Attorney's staff beat a man while another policeman put the barrel of a cocked gun in his ear. The indictment charged that the official minutes of the proceedings showed no accusations had been made concerning the sergeant. County Court found that, in order to constitute a crime under the statute, the publication must not only be false or grossly inaccurate but it must also intentionally assail the dignity and authority of the court. It sustained a demurrer dismissing the indictment.

While the indictment did not allege an intent to make a false or grossly inaccurate publication or to deny the dignity and authority of the court, the People argued that since the indictment was in the language of the statute, it was not susceptible to a demurrer. The Appellate Division agreed.

The Court of Appeals reversed. The majority noted that, "Ordinarily this is the rule..., but the rule is not fixed and invariable where circumstances dictate otherwise. The court found, "Mere errors in reporting, where no willfulness is alleged, are not usually considered a sound basis for contempt proceedings... The inaccuracy charged...