
    The People of the State of New York, Respondent, v. George Budner, Appellant.
    Argued February 4, 1965;
    decided March 18, 1965.
    
      
      Harry Krauss for appellant.
    I. There is no evidence to support a finding that any actions instituted by appellant against Ambassador Clothes, Inc. (or Largever) were the result of a corrupt and malicious intent to vex and annoy or were groundless. (People v. Budner, 13 A D 2d 253; Voorhees v. Dorr, 51 Barb. 580; People v. Gioia, 286 App. Div. 528; People v. Eckert, 2 N Y 2d 126; People v. Carpenito, 292 N. Y. 498.) II. The evidence fails to show any commission of the crime of common barratry, under the statute, as properly interpreted in light of the common-law interpretation thereof. (Brush v. City of Carbondale, 229 Ill. 144; Commonwealth v. McCulloch, 15 Mass. 227; Kauffman & Sons Saddlery Co. v. Miller, 298 N. Y. 38; Matter of Sullivan Co., 289 N. Y. 110; Waters & Co. v. Gerard, 189 N. Y. 302; “Ketcham” v. “Ketcham”, 176 Misc. 993; People v. Delhloff, 283 N. Y. 309.) III. The prior ‘ ‘ modification ’ ’ by the Appellate Term operated as a mandate on the sentencing court and thus failed to correct the error which deprived appellant of his constitutional right to counsel. IV. The trial count erred in receiving improper evidence over objection.
    
      Frank S. Hogan, District Attorney (Robert B. Sperling and H. Richard Uviller of counsel); for respondent.
    I. Appellant was proved guilty beyond a reasonable doubt of the crime of common barratry as defined in the New York statutes. (People v. Budner, 13 A D 2d 253; Commonwealth v. McCulloch, 15 Mass. 227.) II. The hearing held for resentencing, at which appellant was represented by counsel, did not fail to correct the error of initially imposing sentence upon appellant in the absence of his attorney, nor did the trial court improperly allow prejudicial matters into evidence. (Matter of Perillo v. New York State Bd. of Parole, 4 N Y 2d 1013; Nathan v. Equitable Trust Co., 250 N. Y. 250; People v. Sullivan, 3 N Y 2d 196; People ex rel. Miller v. Martin, 1 N Y 2d 406.)
   Van Voorhis, J.

Appellant was charged with common barratry in that on or about June 22, 1961, and prior thereto, he excited needless judicial and legal proceedings in more than three instances with corrupt and malicious intent to vex and annoy Ambassador Clothes, Inc., and its president Mac Largever. Evidence was introduced that defendant returned a suit to Ambassador Clothes which had been made for him from material which he had supplied, with a complaint that the suit did not fit. By reason of this incident, he instituted nine claims or other actions or legal proceedings in Small Claims Court and in Municipal Court. These were adjourned many times, almost always at appellant’s instance, and, except twice where appellant succeeded in obtaining judgment by default, all were dismissed or resulted in judgment for Ambassador Clothes after trial. The evidence is ample to support a finding that these proceedings were conducted with the required statutory intent to vex and annoy. The question is whether a person can be convicted of common barratry if he is himself the party to the actions or other legal proceedings, and has not fomented litigation between others. We assume, as conceded in the brief for the People, that the old common-law concept of barratry was the instigation of quarrels and controversies among honest and quiet subjects of the King (2 Chitty, Criminal Law 233) and that impliedly, at least, the quarrel was introduced by a third party. The problem is whether the law has been changed by statute.

The Penal Law sections involved are:

Section 320. “ Common barratry is the practice of exciting groundless judicial proceedings.”

Section 321. “ Common barratry is a misdemeanor.”

Section 322. “ No person can be convicted of common barratry, except upon proof that he has excited actions or legal proceedings, in at least three instances, and with a corrupt or malicious intent to vex and annoy.”

Section 323. “ Upon a prosecution for common barratry, the fact that the defendant was himself a party in interest or upon the record to any action or legal proceeding complained of, is not a defense. ”

Although the definition in section 322 of one who can be convicted of common barratry is a person whó has “excited” actions or legal proceedings, which might seem to have been intended to continue the common-law ingredient of the crime that litigation be instigated among others, the more reasonable construction would seem to be that the word “ excited” was employed as a survival from common-law days but does not negate the clear intention of section 323 to modify the common-law rule so as to render guilty of common barratry one who has himself instituted actions or legal proceedings, in at least three instances, with a corrupt or malicious intent to vex and annoy.

People v. Budner (13 A D 2d 253) sheds little light upon the construction of these statutes. A conviction was reversed of the same appellant of the same crime arising out of other circumstances, upon the ground that the evidence then before the court was insufficient to establish guilt beyond a reasonable doubt (13 A D 2d 253). Both the court majority and the dissenting Justice appear to have proceeded on the assumption that, if the evidence had been enough to establish a corrupt or malicious intent to vex and annoy, it would not have mattered that he commenced the litigations himself instead of inciting them between other persons. The Appellate Term vacated his first sentence on the present charge and remanded the matter to the Criminal Court for resentence. His appeal to this court -was dismissed for the reason that sentence had not then been imposed and that under those circumstances no appeal would lie (14 N Y 2d 723). His present appeal is after his resentence had been affirmed by the Appellate Term. Since the ground for vacating the former sentence was that his counsel was not present at that stage in the proceedings, .there could not have been error in resentencing him, as was done, with counsel present. This defect in the former sentence did not impugn the validity of the proceedings prior to sentence (People v. Craig, 295 N. Y. 116, 120; People ex rel. Miller v. Martin, 1 N Y 2d 406, 411).

The proceedings in the Municipal Court which are claimed to have been erroneously received in evidence against appellant related to the frivolous litigation which he was charged with having engendered. It concerned his refusal to proceed with a trial on the merits as an allegedly annoying tactic.

The judgment appealed from should be affirmed.

Chief Judge Desmond (dissenting).

I dissent and vote to reverse the judgment and dismiss the information. In no previous case or place has the bringing on one’s own behalf of lawsuits, however annoying or persistent, been condemned as “barratry”. That ancient and almost forgotten pejorative label has never been applied to anything other than the incitement, excitement or stirring up of litigious strifes involving other people. Historically, it is indisputable that to prove “ barratry ” there always had to be proven not only the stirring up of strifes among persons other than “ the common barrator ” himself but also that this was done not as to a single claim or dispute but habitually and as a “ practice ” (Voorhees v. Dorr, 51 Barb. 580, 587; Commonwealth v. McCulloch, 15 Mass. 227; Vitaphone Corp. v. Hutchinson Amusement Co., 28 F. Supp. 526, 530; State v. Batson, 220 N. C. 411; 139 A. L. R. 622 et seq.; 14 Am. Jur. 2d, Champerty and Maintenance, p. 854 et seq.; 9 C. J. S., Barratry, p. 1546 et seq.; 5 Words and Phrases, p. 182; Black’s Law Dictionary [4th ed.], p. 190).

And this is exactly what the New York Penal Law says and means. “ Common barratry ” is defined in section 320 of the Penal Law as “ the practice of exciting groundless judicial proceedings ”, thus expressing the same concept as do the authorities cited in the preceding paragraph of this opinion. Then, section 322 carries this same idea still further when it says: “No person can be convicted of common barratry, except upon proof that he has excited actions or legal proceedings, in at least three instances, and with a corrupt or malicious intent to vex and annoy.”

Finally, section 323 confirms all this when it says that it is no defense to a prosecution for barratry “ that the defendant was himself a party in interest or upon the record to any action or legal proceeding complained of”. This plainly recognizes, referring back to the common law and to sections 320 and 322, that it is the “ exciting ” of litigation (that is, the stirring up of lawsuits by others) that constitutes “common barratry”. However, a defendant who does so cannot escape prosecution by adding himself as a party to the cause or causes. The section 320 definition still stands to give “ barratry ” the same meaning as at common law. Since these statutes clearly are intended to express the common law they should be so construed (Waters & Co. v. Gerard, 189 N. Y. 302, 309; Matter of Sullivan Co., 289 N. Y. 110, 115).

If there be (and I cannot find any) doubt as to what these statutes mean, the result must be a reversal, not an affirmance. “ Statutes which are penal in character must be narrowly and strictly construed and in manner not to embrace cases which do not clearly fall within their terms (People v. Briggs, 193 N. Y. 457; Dieterich v. Fargo, 194 N. Y. 359; People v. Wallace & Co., 282 N. Y. 417). ‘ Acts otherwise innocent and lawful, do not become crimes, unless there is a clear and positive expression of the legislative intent to make them criminal ’ (People v. Shakun, 251 N. Y. 107, 113) ” (People v. Benc, 288 N. Y. 318, 323).

These statutes have been on the books since 1881 (L. 1881, ch. 676, §§ 132-135) and never before construed as in this present decision. Indeed, no one can find any record of any prosecution (till this one) of anyone in this State for “barratry”. To sentence this man to imprisonment under an unprecedented reading of these obsolete statutes is an injustice so gross as to demand reversal.

Judges Dye, Burke, Scieeppi and Bergan concur with Judge Van Voorhis; Chief Judge Desmond- dissents and votes to reverse the judgment and to dismiss the information in an opinion in which Judge Fuld concurs.

Judgment affirmed.  