1917-2017

Court of Appeals Hall Centennial

Court of Appeals Hall, circa 1920

As reported by Albany’s Times Union, on January 8, 1917, “Court of Appeals

Hall,” the renamed and renovated building at 20 Eagle Street, was dedicated to

the administration of justice. That same day, the Court was called into Session

and heard arguments for the first time in its new home.

The building and its courtroom are a majestic display of architecture,

craftsmanship and history. The Richardson courtroom, with its elaborate hand

-carved oak paneling, furniture, and marble and onyx fireplace, is considered

one of the finest 19th century governmental chambers. The distinctive front

steps, where generations of judges and attorneys have stood, are also

stunning. Judges’ chambers, the sweeping three-story rotunda, and many

other areas of the building display an understated elegance that has endured

for a century.

As magnificent as the building and the courtroom are – and they are

magnificent – they are but one part of this extraordinary institution. We

cannot overlook the distinguished attorneys who appear in the courtroom, the

groundbreaking and important cases they argue, the enduring precedent set

by the Court, and the Judges who have sat and now sit with distinction on the

grand bench. All of these pieces, working together, advance the dedication to

the administration of justice that was heralded at 20 Eagle Street one hundred

years ago.

It is my honor to celebrate Court of Appeals Hall on its centennial anniversary.

The pages that follow offer a glimpse of the 1917 Court – the building,

courtroom, Judges, cases and counsel.

In 2017, my colleagues and I proudly rededicate Court of Appeals Hall to the

administration of justice. We will earnestly endeavor to preserve Court of

Appeals Hall and we warmly extend an invitation to visit the Court, as we

gladly share the grandeur of this institution with the public we serve.

Chief Judge Janet DiFiore

FOREWORD

20 Eagle Street

STATE HALL

The building at 20 Eagle Street was designed by Henry Rector, completed in

1842 and originally housed state offices. The building was known as “State

Hall” and the “State House.” From 1884 to 1916, the Court of Appeals

heard oral argument in a courtroom designed by H.H. Richardson on the

third floor of the Capitol. In 1916, the state offices at 20 Eagle Street were

moved to other locations and State Architect Lewis F. Pilcher designed a rear

addition to State Hall that would accommodate the courtroom and a library.

Extension built to accommodate the Richardson Courtroom and library

Upon completion of the addition, the Richardson Courtroom and its

contents, including the onyx and bronze fireplace and a hand-carved clock,

were moved from the third floor of the Capitol to 20 Eagle Street. The

woodwork paneling had to be moved piece by piece. The elaborately carved

bench, with gargoyle heads on its front, was also relocated. On January 8,

1917, the building at 20 Eagle Street was dedicated as “Court of Appeals

Hall” and that same day oral argument was heard in the Richardson

Courtroom at Court of Appeals Hall for the first time.

Courtroom Relocation

COURT OF APPEALS HALL

Richardson Courtroom, Court of Appeals

1917 Composition

THE COURT

Under the 1870 New York Constitution, the Court of Appeals was composed of

a Chief Judge and six Associate Judges, each chosen by election and holding

office for 14-year terms. The mandatory retirement age was 70. Five Judges

formed a quorum and four were necessary for a decision.

In 1899, a constitutional amendment was adopted to address a large backlog

of Court of Appeals cases. The amendment permitted the Governor, at the

request of a majority of the Judges of the Court, to designate up to four

Justices of the Supreme Court to serve as Associate Judges of the Court of

Appeals. Beginning in 1900, “ex officio” Judges were thus designated to serve

on the Court of Appeals. From 1900 to 1923, the Court’s membership varied

from seven to ten Judges, although only seven Judges were permitted to sit on

each case.

Conference Room, Court of Appeals, circa 1921

1917 Judges

THE COURT

Chief Judge Frank Harris Hiscock (Ex Officio 1906-1913; Court of Appeals 1914

-1916; Chief Judge 1917-1926)

Ex Officio Emory A. Chase (1906-1920; Associate Judge 1921)

Associate Judge Frederick Collin (1910-1920)

Associate Judge William H. Cuddeback (1913-1919)

Associate Judge John W. Hogan (1913-1923)

Associate Judge Benjamin N. Cardozo (1914-1926; Chief Judge 1927-1932)

Associate Judge Cuthbert W. Pound (1915-1931; Chief Judge 1932-1934)

Associate Judge Chester B. McLaughlin (1917-1926)

Ex Officio Frederick E. Crane (1917-1920; Associate Judge 1920-1934; Chief

Judge 1934-1939)

Ex Officio William S. Andrews (1917-1921; Associate Judge 1921-1928)

Judge Pound, Court of Appeals steps Chief Judge Hiscock, Chambers

Approximately 800 cases were reported as decided in 1921; less than 200 of

these were decided with a written opinion from the Court.

1917 cases of important precedential significance:

DeCicco v Schweizer (221 NY 431). In an opinion by Judge Cardozo, the Court

held that a contract between a son-in-law and his wife’s parents for a

promised annual dowry payment was valid and enforceable by the wife even

though the promise was from the father-in-law to the son-in-law, as the

promise was intended for the benefit of the wife and she had a right to adopt

and enforce the promise and by doing so made herself a party to the contract.

Interestingly, counsel for the father-in-law was Willard Bartlett, who served as

a Judge on the Court of Appeals, and was the Court’s Chief Judge from 1914 to

1916 – the year before the case was argued and decided.

Wood v Lucy, Lady Duff-Gordon (222 NY 88). This case is familiar to most law

students for the proposition that a promise is sufficient consideration for a

contract. The plaintiff was a successful New York advertiser who contracted

with defendant, Lucy, Lady Duff-Gordon (a major fashion designer, also known

as a stage actress and survivor of the sinking of the Titanic), for an exclusive

right to market products with her endorsement, with half of the profits going

to defendant. Defendant, however, marketed her own line of clothing with

Sears Roebuck, the sales of which did not profit plaintiff at all. The question

before the Court was whether plaintiff’s promise to give half of the profits

from the endorsed products to defendant was sufficient consideration. In an

opinion by Judge Cardozo, the Court held that the promise to represent

defendant’s interests was sufficient consideration.

Enduring Precedent

THE CASES

Judge Cardozo, Court of Appeals steps

Enduring Precedent

THE CASES

Tauza v Susquehanna Coal Co. (220 NY 259). In exercising general jurisdiction

over a Pennsylvania corporation (headquartered in Philadelphia, with a branch

office in New York City under the direction of a sales agent, with eight salesman

and clerical assistants who systematically and regularly solicited and obtained

orders resulting in shipments from the coal yards in Pennsylvania to New York),

the Court held that if a corporation “is in a state not occasionally or casually,

but with a fair measure of permanence and continuity, then, whether its

business is interstate or local, it is within the jurisdiction of our courts” (Opn. by

Cardozo, J., 220 NY at 268).

Matter of Rouss (221 NY 81). In an attorney discipline proceeding, the Court

held that disbarment proceedings are not criminal in nature. Judge Cardozo’s

opinion is often cited for the proposition “Membership in the bar is a privilege

burdened with conditions. A fair private and professional character is one of

them” (id. at 84).

Weigand v United Traction Co. (221 NY 39). In a personal injury action, a

pedestrian claimed that she did not see an approaching trolley car that was in

full view. The Court held that the pedestrian’s statement that she did not see

the trolley car was incredible as a matter of law, and this case is frequently cited

for the proposition that an individual is “bound to see what by the proper use

of her senses she might have seen” (id. at 42).

Enduring Precedent

THE CASES

Judge Crane, Chambers

Marhoffer v Marhoffer (220 NY 543). Frequently cited for the proposition

that workers compensation is compensation for the inability to work and the

loss of one’s earning power, not for damages from the actual injury or

resulting disability (id. at 546).

Matter of McKelway (221 NY 15). In a proceeding involving the estate of St.

Clair McKelway, who was the Regent of the State of New York and a Chancellor

of the Board of Regents as well as the Editor of the Brooklyn Eagle at the

height of its influence, the Court held and the case is often cited for the

proposition that a transfer tax is applicable to one half of the total personal

property passed to the surviving joint tenant (id. at 17-18).

1917 Cases Recently Cited by the Court of Appeals

THE CASES

People v Van Every (222 NY 74) was cited as an historical reference as

recently as 2016. In People v Guerrero (28 NY3d 110), Judge Rivera noted that

the legislative purpose of CPL 200.70 was to change the strict common law

rule that forbade even minor changes to an indictment (Rivera, J. dissenting

[also noting that the Legislature passed CPL 200.70 in response to this Court’s

decision in People v Van Every, which dismissed an indictment for legal

impossibility because it stated that the crime occurred on a future date]).

Potts v Pardee (220 NY 431) involved a personal injury accident arising from

a chauffeured car. The owner of the automobile was Georgie Pardee, the

daughter of George B. Gates, whose family owned the Ellicott Square Building

in Buffalo (Mrs. Pardee was instrumental in the naming of “Gates Circle” in

Buffalo). Mrs. Pardee was riding in the car being driven by her husband’s

chauffeur when the chauffeured car struck and seriously injured a pedestrian

in Rochester. This Court held that the non-driving owner Mrs. Pardee was not

liable for the damages, as the driver was not in her employ nor engaged in her

business. In ELRAC, Inc. v Ward (96 NY2 58), the Court recognized that the

holding in Potts was superceded by Vehicle and Traffic Law section 388.

Finley v Atlantic Transp. Co., Ltd. (220 NY 249) was cited by Judge Rivera in

her dissenting opinion in Shipley v City of New York (25 NY3d 645) as support

for New York’s policy of respecting the dead and the wishes of their relatives.

In Finely, the Court held that the deceased’s next of kin could maintain an

action against a shipping company for casting decedent’s body into the water

when the ship was only 20 hours from port.

1917 Cases of Historical Interest

THE CASES

Judge Andrews, Chambers

As stated in People v Sanger (222 NY 192), section 1142 of the Penal Law made

it a misdemeanor for any person to sell, give away or advertise or offer for sale

any instrument for the prevention of conception. Margaret Sanger was

convicted for violating this section and sentenced to thirty days in a

workhouse for her attempted dissemination of a newsletter, “The Woman

Rebel,” which advocated for birth control. In affirming the conviction, the

Court held that defendant’s arguments regarding the unconstitutionality of her

conviction were sociological in nature and best left to the Legislature.

The estate dispute in Matter of Fowles (222 NY 222) arose out of the tragic

sinking of the Lusitania where passengers Mr. and Mrs. Fowles were lost at

sea. Their estate was valued at over one million dollars and included

Rembrandt’s “Portrait of a Youth.” The Court held that a survivorship clause in

the husband’s will was valid, notwithstanding the lack of evidence regarding

which spouse survived the other.

Case Trends—Prevalent Topics in the Court’s 1917 writings

THE CASES

Workers’ compensation cases (e.g. Matter of Fogarty v National Biscuit Co.,

221 NY 20 [defendant is now known as Nabisco; the Court held that the wife

of a watchman who died while patrolling a “hazardous” business is entitled to

compensation under the Workmen’s Compensation Law])

Labor and Employment cases (e.g. McNamara v Eastman Kodak, 220 NY 180

[steelworker fell to his death through an uncovered shaft during the 1912

construction of the Eastman Kodak sixteen-story office building in Rochester;

the Court held that the steelworker’s death was due to the omission of

statutory safeguards during construction])

Railroad personal injury cases (e.g. Brott v Auburn & Syracuse El. R.R. Co., 220

NY 92 [involving fatal injuries to a prospective passenger about to board an

“interurban” trolley car that ran between Syracuse and Auburn; Court held the

jury could have found that the motorman saw decedent or should have seen

her in time to stop the car at its regular stopping place])

Automobile liability cases (e.g. Van Blaricom v Dodgson, 220 NY 111 [when an

adult son is occasionally permitted to use his father’s car, the son is not the

agent of the father and the father is not liable for the son’s accident])

Statutory Construction cases (e.g. People ex rel. Noble v Mitchel, 220 NY 86

[holding that a Surrogate of Queens County was not entitled to additional

compensation even though a new statute required an additional duty of

drawing jurors])

Comparison to Current Docket

THE CASES

Compared to today’s docket, largely absent from the Court’s 1917 docket

were criminal cases (but see People v Seppi, 221 NY 62 [the identification of

the defendant as the assailant was not shown with sufficient certainty to

preclude a reasonable possibility of error]) and

Family Law cases (but see Ex Parte Lee, 220 NY 532 [habeas corpus

proceeding concerning the custody and guardianship of the child William

Crossman Mills, the heir to the million dollar coffee fortune)

Tauza v Susquehanna Coal Co., 1915-1918 Book of Minutes and

Causes, at page 225. Similar to today’s electronic docket, the entry

includes the name of the case, names and addresses of counsel, and

the filings at the Court of Appeals. Counsel were Joseph Levy, 27

William St. with Franklin Nevius arguing for appellant and Kellogg &

Rose, 115 Broadway with Frank J. Felbel arguing for respondent. The

case was argued on January 10, 1917 and decided on March 6, 1917.

Former Court of Appeals Judges who argued in 1917

COUNSEL

Willard Bartlett (1906-1916; Chief Judge 1914-1916) (DeCicco v Schweizer, 221

NY 431)

Charles F. Brown (1889-1892) (Matter of Fowles, 222 NY 222)

Edgar M. Cullen (1900-1913; Chief Judge 1904–1913) (Matter of McKelway,

221 NY 15)

Alton B. Parker (Chief Judge 1898-1904) (Andrews v Cohen, 221 NY 148)

Samuel Seabury (1914-1916) (Marsh v Consumers Park Brewing Co., 220 NY

205)

“The doors of the Court of Appeals are open to all

who within the limits of its jurisdiction may seek

its aid and the weakest and frailest equally with

the strongest may enter with an abiding faith

that they will have patient hearing and receive

at its bar what is justly their due.”

Lewis E. Carr, Representing Albany County Bar

Association at Dedication of Court of Appeals

Hall, January 8, 1917

Future Court of Appeals Judges and Family who argued in 1917

COUNSEL

1917 Rotunda, with

acorn light fixtures and

mosaic floor

Edmund H. Lewis (1940-1954; Chief Judge 1953-1954) (Buckles v State, 221 NY

418; Barrett v State, 220 NY 423)

John F. O’Brien (1927-1939; son of Court of Appeals Judge Denis O’Brien, 1890

-1907) (Faber v City of New York, 222 NY 255)

Stewart F. Hancock, a prominent attorney from Syracuse who served as local

counsel to President Theodore Roosevelt in his successful defense of a libel

suit, was the father of Court of Appeals Judge Stewart F. Hancock, Jr. (1986-

1993). In 1917, six years before the birth of the future Judge, the Senior Mr.

Hancock appeared before the Court in: Cleary v R.E. Dietz Co. (222 NY 126)

and Weedsport Elec. Light Co. v Village of Weedsport (220 NY 386)

Prominent Historical and Political Figures who argued in 1917

COUNSEL

Edwin DeTurck Bechtel, an authority and scholar of rose culture, the Bechtel

Rose Garden at the New York Botanical Garden is named after him

(Metropolitan Trust Co. of N.Y. v State Bd. of Tax Commrs., 220 NY 344)

Edgar T. Brackett, former Member of New York Senate (1896-1906; 1909-

1912) (Tauza v Susquehanna Coal Co., 220 NY 259 and Wintersteen v City of

New York, 220 NY 57)

Thomas F. Conway, former New York State Lieutenant Governor (1910-1911)

(People ex rel. Saranac Land & Timber Co. v Extraordinary Special & Trial Term

of Supreme Ct., 220 NY 487)

S. Wallace Dempsey, serving United States Representative (1915-1931)

(Kinney v Kinney, 221 NY 133)

Ernest I. Edgcome, future Justice of Appellate Division, Fourth Department

(1928-1937) (Brott v Auburn & Syracuse El. R.R. Co., 220 NY 92)

George H. Engelhard, an early law partner of Cardozo (Small v Housman, 220

NY 504)

Ralph W. Gwinn, future United States Representative (1945-1959) (Gately-

Haire Co. v Niagara Fire Ins. Co. of N.Y., 221 NY 162)

Lamar Hardy, New York City Corporation Counsel in 1917 and future United

States Attorney for the Southern District of New York (1935-1938) argued

many cases before the Court in 1917 (e.g. People ex rel. Noble v Mitchel, 220

NY 86)

James S. Havens, former United States Representative (1910-1911) and Vice-

President and Secretary of Eastman Kodak and head of its legal department

(Klotz v Angle, 220 NY 347)

Prominent Historical and Political Figures who argued in 1917

COUNSEL

Harvey D. Hinman, former New York State Senator (1905-1912) (McCormack

v Security Mut. Life Ins. Co., 220 NY 447 )

Charles E. Hughes, Jr., former secretary to Judge Cardozo (1914-1916); future

United States Solicitor General (1929-1930); son of Governor and United

States Supreme Court Justice Charles E. Hughes, Sr. (People ex rel. Van Tine v

Purdy, 221 NY 396)

George L. Ingraham, former Justice and Presiding Justice of Appellate

Division, First Department (1896-1915) (Matter of Fowles, 222 NY 222)

Warnick J. Kernan, President of New York State Bar Association (1940) and

President of State Law Revision Committee (1940) (Ruback v McCleary, Wallin

& Crouse, 220 NY 188)

Harry E. Lewis, Kings County District Attorney, former County Judge for Kings

County (1915) and future Supreme Court Justice (beginning in 1921); Appellate

Division, Second Department (1943-1948), Presiding Justice (1946-1948)

(People v Richardson, 222 NY 103; People v Sanger, supra, 222 NY 192; People

v Minkowitz, 220 NY 399)

Merton E. Lewis, Attorney General of the State of New York from April 19,

1917 until 1918. Appeared in many cases on behalf of the State; former

member New York State Assembly (1897, 1899, 1900, 1901); former New York

Senator (1902 – 1906)

Thomas F. Magner, former member New York State Assembly (1888) and

former United States Representative (1889-1895) (Matter of Senior v Boyle,

221 NY 414)

Louis Marshall, a civil rights attorney and one of the founders of the

American Jewish Committee (Klotz v Angle, supra, 220 NY 347)

Prominent Historical and Political Figures who argued in 1917

COUNSEL

Gilbert H. Montague, a pro-business economist and author who taught

Franklin D. Roosevelt in an economics course while attending Harvard Law

School and served as an advisor to United States Treasury and Justice

Departments (Finley v Atlantic Transp. Co., Ltd., 220 NY 249)

John Hill Morgan, former Member of the New York State Assembly (1900-

1903), a leading authority on American colonial art and honorary curator of

the Yale School of Fine Arts (Wooley v Stewart, 222 NY 347)

William Nottingham, the namesake of Nottingham High School in Syracuse,

New York (Brott v Auburn & Syracuse El. R.R. Co., 220 NY 92)

Pervical D. Oviatt, future Mayor of Rochester (beginning in 1933) and an

attorney in the law firm now known as Woods Oviatt Gilman (Van Blaricom v

Dodgson, 220 NY 111)

Walter Heilprin Pollak, Cardozo’s law partner before Cardozo joined the

bench. As an attorney for the American Civil Liberties Union, he argued Gitlow

v New York (268 US 652) to the United States Supreme Court and, although he

lost, the Gitlow case has been described as marking the beginning of the

Supreme Court’s acceptance of the incorporation doctrine, which extends

most of the provisions of the Bill of Rights to limit actions by state and local

governments. He also argued for the defense in Powell v Alabama (287 US 45

[1932] [extending right to counsel in death penalty cases to state criminal

trials]) (Matter of Rouss, 221 NY 81)

Charles E. Russell, future New York State Senator (1919-1920; 1923-1924,

1926-1929), and future Judge of Brooklyn City Court (elected 1929) (People v

Richardson, 222 NY 103)

Prominent Historical and Political Figures who argued in 1917

COUNSEL

Rollin B. Sanford, serving Member of United States House of Representatives

(1915-1921) (McCormack v Security Mut. Life Ins. Co., 220 NY 447)

Sanford W. Smith, former member of New York State Assembly (1901), New

York State Senator (1906-1908) and future Presiding Justice of the Court of

Claims (1918-1927) (First Constr. Co. of Brooklyn v State of New York, 221 NY

295)

Parton Swift, future New York State Senator (1920-1923) and future Supreme

Court Justice (1934-1946) (Cornwell v Sanford, 222 NY 248)

Charles H. Tuttle, future United States Attorney for the Southern District of

New York (1927-1930) and Republican nominee for New York State Governor

(1930) who lost to Franklin D. Roosevelt (Small v Housman, 220 NY 504; Lopes

v Linch, 220 NY 64)

Walter W. Wile, whose wife, Edith Lowman Wile, was a renowned

biochemist (Finley v Atlantic Transp. Co., Ltd., 220 NY 249)

Augustus Van Wyck, former Superior and Supreme Court Justice in Brooklyn

(1884-1896) and in 1898 was the Democratic nominee for New York governor,

losing to Theodore Roosevelt (Terwilliger v Browning, King & Co., 222 NY 47)

George W. Wickersham, former Attorney General of the United States (1909-

1913) (Matter of Rouss, 221 NY 81)

Egburt E. Woodbury, Attorney General of the State of New York from 1915 to

April 19, 1917 (resigned due to illness) appeared in many cases on behalf of

the State in 1917; former member of New York State Assembly (1891-1893);

former Surrogate of Chautauqua County (1901-1905)

I. Maurice Wormser, future editor of the New York Law Journal (1919-1931)

(Levy v Louvre Realty Co., 222 NY 14; White Studio, Inc. v Dreyfoos, 221 NY 46)

1917 CLERK’S MINUTES

The 1917 Clerk’s Minutes recorded, by hand, the date of argument, argument number, title of

cause, assigned Judge, date the case was internally decided and date the case was publically

released. Below is an excerpt from the Clerk’s Minutes for January 8th, 9th, 10th and 11th,

showing the cases argued on those days.

Jan. 8 Matter of the Accounting of Park

Jan. 9 Matter of Wedgworth

Matter of Craig

Brooklyn Borough Gas Co. v Public Serv. Comm.

Jacobs v American Play Co.

Jeffery v Selwyn

Finley v Atlantic Transport Co.

Jan. 10 People ex rel. Jointa Lime Co. v Sohmer

People ex rel. Hempstead v Bd. Supervisors

Tauza v Susquehanna Coal Co.

Matter of Estate of Shearson

Matter of Stubbe v Adamson

Jan 11. People ex rel. Noble v Mitchel

Matter of Browning v Adamson

Crossin v Woolf

Bartholomay Brewery Co. v O’Brien

Schwartz v Cahill

Garrigues Co. v Casualty Co. of Am.

Matter of Durban

Matter of Doubleday

Matter of Glatzl v Stumpp

BIBLIOGRAPHY

Information on the Court, its Jurisdiction and Judges

Chief Judge Judith S. Kaye, There Shall Be a Court of Appeals (1997), available at https://

www.nycourts.gov/history/legal-history-new-york/documents/History_COA-Kaye-There-Shall-

Be.pdf

Charles F. Cambell, Editor, State Supreme Courts, National Center for State Courts (2013)

Historical Society of the New York Courts, Biographies, available at http://www.nycourts.gov/

history/legal-history-new-york/history-legal-bench-bar.html

Arthur Karger, Powers of the New York Court of Appeals (3d ed rev 2005)

Albert M. Rosenblatt, The Judges of the New York Court of Appeals, A Biographical History (2007)

Information on Counsel and Litigants

Congressional Biographical Directory, available at www.bioguide.congress.gov/biosearch

Edwin DeTurck Bechtel Papers, New York Botanical Garden Library, Biography, available at

www.nybg.org/library/finding_guide/arch/bechtel_ppb.html

The Margaret Sanger Papers Project at New York University, available at www.nyu.edu/projects/

sanger/aboutms/index.php

Charles H. Tuttle Papers, New York State Library Collection, Biographical Note, available at

www.nysl.nysed.gov/msscfa/sc21262.htm

Leanna Lee Whitman & Michael Hayes, Lou Pollak: The Road to Brown v Board of Education and

Beyond, Proceedings of the American Philosophical Society, Vol 158, No. 1, March 2014, at 33

New York Times Obituaries:

Thomas Conway (November 10, 1945)

George H. Engelhard (Oct. 24, 1945)

Harvey D. Hinman (July 12, 1954)

Warnick J. Kernan (July 8, 1973)

Harry Lewis (August 24, 1948)

Louis Marshall (September 12, 1929)

W.H. Pollak (October 3, 1940)

Parton Swift (April 18, 1952)

George W. Wickersham (January 26, 1936)

Edith Lowman Wile (April 8, 1970) (wife of

Walter W. Wile)

I. M. Wormser (October 23, 1955)