
    The People ex rel. William H. Berby, App’lt, v. The Common Council of the City of Auburn et al., Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 12, 1895.)
    
    1. Municipal corporation — City attorney.
    In a proceeding to remove the city attorney from office for misconduct, the sufficiency of the notice of the charges is not affected by the fact that some of the charges were subsequently amended merely in amplification of the original charges, where an adjournment of several days was taken to give the city attorney an opportunity to meet the amended charges.
    2. Same — Disqualification.
    Members of the common council, who preferred the charges against the city attorney, are not thereby disqualified from taking part in the pro ■ ceeding to remove him.
    S. ¡Same — Misconduct.
    The city attorney is guilty of misfeasance and malfeasance in office, where he stipulates, in an action against the city, not to appeal from the decision of the general term of the supreme court to the court of appeals, and subsequently reports to the common council that he has done nothing to prevent an appeal.
    4. Same.
    Though, after such stipulation, he is appointed to office for another term, he is guilty of such misconduct in the second term of office as will authorize his removal, if he, during such term, reports that he had done nothing to prevent an appeal.
    
      Certiorari against the common council of the city of- Auburn and others to review the determination in removing relator from the office of city attorney.
    
      Teller & Hunt and Robert H. Drummond, for relator; Lyon & Pierce, for resp’ts.
   The relator was first appointed city attorney by the common city in April, 1891, to fill a vacancy. In March, 1892, he was again appointed for a full term of two years, and in March, 1894, reappointed. The common council is composed of the mayor and ten aldermen, whose terms of office are two years, commencing the first Tuesday of March after their election. In September, 1892, one Maude Marie V. Par-cells commenced an action in the supreme court against the city to recover damages for a personal injury sustained by her by reason of stepping into a hole in a defective sidewalk. The relator, as city attorney, appeared for the city, it defending. The action was tried in May, 1893, at the Cayuga circuit, and resulted in a verdict for the plaintiff for §9,000, besides costs. The relator appealed, for the city, to the general term. The trial of the cause occupied several days, and the evidence was voluminous, amounting to about 400 pages of typewritten matter. The relator was •unable to get a copy of the stenographer’s minutes until about the 1st of August. On September 25th a proposed case and exceptions were served, consisting of sixty pages, and on the 19th of November 613 amendments were served to the proposed case, and the case was settled December 7, 1893. The papers then had to be printed, and there were some delays in that matter. The case, as settled, did not show that it contained all the evidence given upon the trial. The appeal was noticed for the January general term, 1894, the printed case not having been served; and the plaintiff’s attorney threatened to make a motion to dismiss the appeal, under the rules, for the want of such service. Some difficulty occurred between the attorneys in regard to such delay, and the relator, being pressed, gave a stipulation providing that if the printed cases were not served on or before January 5th the appeal might be dismissed, and judgment rendered for the plaintiff. The case was put upon the day calendar, and reserved for January 10th. The printed cases were not satisfactory, on account of some mistake in the printing, and were not served; and on January 8th the plaintiff’s attorney served a notice of motion to dismiss the appeal and for judgment, to be heard on the 12th. The plaintiff’s attorney insisted upon the motion, unless the relator would stipulate to abide the judgment of the general term, and not appeal the case to the court of appeals, but with permission to the plaintiff to appeal, in case she were defeated at the general term. The relator insisted that he did not expect to go beyond the general term, and gave the stipulation binding the city not to appeal to the court of appeals. The stipulation was not filed, and the relator gave no notice thereof to the common council, although he claims to have told individual members of the council. In March, 1894, the general term handed down its decision, affirming the judgment. After the relator had been reappointed the second time, rumors reached members of the common council of the stipulation not to appeal to the court of appeals, and the subject came up at meetings of the council; and the relator, in effect, denied that he had executed such a stipulation, and made a report to the common council, under date of April 16th, 1894, stating the judgment of affirmance, and quoting from the opinion of the court, “that the jury was justified, from the evidence, in finding the plaintiff was free from negligence contributory to her injury, and that the verdict seemed to be fully sustained, from the evidence.” The report continued that the relator had advised settlement for an amount less than the ultimate recovery, which the common council had declined to consent to, and again advised that the judgment be .paid, as there was no possible chance of the city’s succeeding in the case, and concluded as follows:

“An appeal to the court of appeals means only additional cost and expense. The city will be beaten, without question. I have heard rumors that the city could not appeal. It has been my policy to pay but little attention to street gossip or the newspapers, whose correspondents have personal reasons to misrepresent and distort the truth; and I will only say, if your honorable body sees fit to direct that an appeal from the judgment of the general term be taken in this case, there is no reason why the same should not be done. ISTothing I have done can prevent the same."

There was nothing in this report to indicate that the stipulation had been given. After that the city council, by resolution, directed the relator to take the necessary steps to appeal the cause to the court of appeals. A committee of the common council was appointed to investigate the matter, — W. C. Firth and Clarence TJ. Chedell, members of the common council. They reported, under date of June 11, 1894, the execution of such stipulation, and charging the relator with neglict and violation of duty as attorney of the city, in regard to his proceedings in that action, and the giving of such stipulation, and with suppressing the existence of the stipulation from the common council, with intent to mislead and deceive. A motion was afterwards made at a special term of this court to set aside and annul the said stipulation. The relator took part in the preparation of the papers for such motion, being present and assisting when the motion was made, and made an affidavit in which he stated thathesignedthe stipulation to save delay, believing that the only question in the case was contributory negligence, and that the decision of the general term would not be*reversed by the court of appeals, and added “ that deponent had no authority from the common council of the city of Auburn to sign such stipulation, but did it believing it to be for the best, and that there was no consideration for said stipulation." The mayor and other members of the common council made affidavits, of which the relator had knowledge which were read upon the said motion, in effect that they did not know of the existence of such stipulation, and that the relator had no authority to make it. On June 11, 1894, at a meeting of the common council duly called, written charges were preferred against the relator, which were served upon him on the 13th of June, and he was notified to attend at a meeting of the common council for the 28th of June. These charges, in effect, accused the relator of malfeasance and misfeasance in his office as city attorney, with respect to the management of the said action ; with negligence in regard to the same; with the giving of the said stipulation without authoritywith giving a false report to the common council in regard to the same, and which report suppressed the fact of such stipulation, and with falsely stating that there was nothing to prevent the appeal to the court of appeals, when he knew of the existence of the stipulation which prevented it; and with improper conduct and bad faith toward his client, the city of Auburn, in the said action, and forgiving advice to it upon a false or assumed state of facts.

By section 44 of the charter of the city, it was provided:

“ That the city attorney shall be the legal advisor of the common council and- of the several departments of the corporation; shall prepare all legal papers for the city ; have the management of all its law business, and perform such other duties as the common council may require.” 1

The twenty-seventh section of the charter provides as follows :

“ No person appointed under the provisions of this act shall be removed from office except by the concurring vote of two-thirds of all the members of said council; unless for malfeasance or misfeasance in office when, after an opportuity to be heard before said council upon a notice of two weeks, such persons may be removed by a concurring vote of a majority of said members.”

The relator answered denying these charges, and proceedings were had thereon before the common council in the summer of 1894, and testimony was given under oath of witnesses, documentary evidence introduced, and the relator sworn in his own behalf. Counsel appeared for the prosecution and for the relator before the common council, and the forms of trial in courts were observed as to the proceedings, and the relator had full opportunity of being heard in his'defense. The mayor presided, and the common council made rulings as to the admission or rejection of evidence. The relator was found guilty by the common council, by a majority vote, of the charges, and removed from office, and upon his application a writ of certiorari brings the subject before us.

The relator attacks the jurisdiction of the common council, in this: that he had not received the notice required by statute, of fourteen days, of the charges against him. This contention is not well founded, as the proof shows that he had the fourteen days notice of the substance of the charges upon which he was ultimately convicted. The amendments of one or two of the charges, which occurred during the progress of the investigation, were but an amplification of the original charges, and made in his presence, and an adjournment of several days was taken by the common council to give him an opportunity to meet the amended charges, and the relator had every reasonable opportunity to do so.

He further assails the jurisdiction because two of the common council (Firth and Chedwell) who voted upon the charges and took part in the proceedings, had made a report to the common council, upon an investigation made by them, substantially preferring the charges that the council subsequently made. The common council is created, by statute, the only tribunal that can take proceedings against the relator for the matter alleged against him. It is therefore absolutely necessary that this body take this action, or it cannot be taken at all. Consequently the 'duty that devolved upon each member of the common council, to take part in the proceeding, was absolute, notwithstanding he may have formed such on opinion or taken such action in the premises as would disqualify him if he were a judge or juror in an action at law. In re Ryers, 72 N. Y. 1, 11-13," the county judge of Richmond county has made an order appointing commissioners in a proceeding to drain lands under a statute, and lands in which the judge was interested ; he being the only authority, under the statute, that could appoint such commissioners. The point was made that the judge was disqualified from making the appointment, on uccount of being an interested party; and the court of appeals, after citing many authorities, reaches the conclusion “that it must be the law, from these cases, that where the judicial power has been confided to one judge, and if he should fail to act there would be no means of proceeding in the matter, though interested, he may take such cognizance of the case as is absolutely necessary, so far that the party shall not be without remedy.” This we understand to be confined to cases where the judicial officer has not such an interest in the cause or matter that the result must necessarily affect his personal or pecuniary interest; or where his interest is minute, and he has so exclusive a jurisdiction, by constitution or statute, that his refusal to act in the cause or matter will prevent any proceeding in it, then he may act, so far as that there may not be a failure of remedy. This is the rule as to judicial officers. The rule would be more liberal still in this case. The common council, in this proceeding, were, strictly speaking, not a court, nor were its members judges. The proceeding was not a common law trial, with the incidents and common law rights pertaining to the trial; nor, strictly speaking, was it a trial before a court. It was an investigation required by the statute to furnish information of the common council, upon which it could act. People v. Board of Police Com’rs, 93 N.Y. 102, 103 ; 98 id. 334, 335; People ex rel. Lee v. Doolittle, 44 Hun, 293 ; 7 St. Rep. 651. These members of the common council had no pecuniary interest in the result of the proceeding, and were not in any sense _ parties to it, further than to discharge the duties imposed upon them by law. We must hold that the common council had jurisdiction, and that the authority conferred upon it by the statute in relation to the subject-matter has been pursued in the mode required by law in order to authorize them to make the determination.

The remaining questions are whether, under section 2140 of the Code of Civil Procedure, in making their determination, any rule of law affecting the rights of the relator has been violated, to his prejudice, and whether there was any competent proof of all the facts necessary to be proved to authorize the making of the determination, and, if there was such proof, whether there was, upon all the evidence, such a preponderance of proof against the existence of the fact alleged against the relator as constituting malfeasance or misfeasance, or both, as that a verdict of a jury affirming the existence thereof, in the supreme court, would be set aside as against the weight of evidence. The relator claims that, assuming that the acts charged against him have been shown by competent evidence, they constitute neither malfeasance nor misfeasance. What do these terms mean, when considered in connection with the relation of attorney and client, and the purpose of the statute in clothing the common council with the power of removal? Light can be gathered upon this subject from the reciprocal duties and obligations of the client and attorney. “ Malfeasance ” has been defined in Bouvier’s Law Dictionary to be “ the unjust performance of some act which the party had no right, or which he had contracted not, to do.” And the same authority defines “ misfeasance ” as the performance of an act which might lawfully be done, in an improper manner, in which another person receives an injury. And the Imperial Dictionary defines “ malfeasance” as: “In law, the doing of an act which a person ought not to do; evil doing; wrong; illegal deed,” — and defines “ misfeasance ” to be: “ In law, a trespass or wrong done; also an improper performance of some lawful act,” — and cites Wharton.

The true relation of client and attorney has been defined to be as.follows: “The principal duties of an attorney are to be true to the court and to his client; to keep the client informed as to the state of business; to keep his secrets confided to him as such.” To which may be added that the attorney is commissioned by the court to hold himself out to the world as competent and trustworthy, that the public may rely upon him; chat he has the necessary legal knowledge to represent his clients in courts of justice and other tribunals, and the integrity which will protect them from all fraud and wrongdoing on his part. He must have no secrets from his clients as to their business. He must be open and frank with them, and, if he performs any act without first consulting them, that is important in their affairs, though he may have authority so to do, he should communicate it to them at the first reasonable opportunity. Above all, he should be guilty of no bad faith, double dealing with, or suppression of the truth, from them. He is an officer of the court, and the court must at all times be astute to discover any professional misconduct on his part, and take proper action in reference to it. We have no doubt but what the matters charged, if true, constitute both malfeasance and misfeasance, under the conditions of this case. The recital of those facts, to some extent, appears above. Without the knowledge of the common council, the relator did stipulate that there should be no appeal, so far as the city was concerned, to the court of appeals. This was a most important step, and barred the city of its right of hearing in the court of last resort in regard to a judgment against it of a large amount. The attorney had the power to make this stipulation, under the charter of the city, and by virtue of his power as a general attorney in the action. The stipulation not to appeal was a proceeding in the cause, and by reason thereof the plaintiff in the action referred to waived a substantial right, viz., to move to dismiss the appeal, under the rules, when the defendant was in default. And see Smith v. Barnes, 60 St. Rep. 631, and cases cited.

The relator testified before the common council, and produced two or three witnesses to confirm his statement, that, at an executive session of the common council, authority was given him to take . such action with reference to appeals in the case as he saw fit. This was disputed by other evidence, and was therefore a question of fact, for the common council to determine; and it was upon this question that affidavits prepared by the relator, or under his supervision, and his own affidavit, showing that no such authority was given, were introduced, properly, in evidence. If he had such authority, why did he deny it in his affidavit? When he made' his report to the common council as to the conduction of the action of Maude v. Parcells, he was directly called upon to state whether he had taken any step in that action to prevent the city from appealing to the court of appeals. It was his duty to have frankly reported that fact to the common council. Instead of so doing, he avoids the question, and distinctly says he had done no act that would prevent the city appealing to the court o£ appeals. We find nothing in the evidence to excuse or even palliate this feature of his report; and his wrongdoing lies more in the fact that he sought to suppress from his client, the city, the knowledge of the important fact of the execution of this stipulation, than to induce them to act without that knowledge. He substantially admits he made, in the presence of the common council, the statements “that he had never signed any stipulation which prevented the city from carrying the Parcells Uase to the court of appeals; but there was no such stipulation; that, if he had signed it, he had done the act of a seven year old boy, and was not fit to be the city attorney; that there was no occasion for making any such agreement, and, if any stipulation existed, it was a forgery,” etc, — and which seems to show conclusively that the relator was seeking to suppress from the city the fact of the execution of the stipulation.

The relator makes the point that the common council had no authority to try the relator because the acts charged as malfeasance and misfeasance were committed by him during a former term of office. ■ It is true that the stipulation not to appeal to the court, of appeals was made during the term of the relator’s office that expired in March, 1894; but the report made by him as to his proceedings in the case, and the suppression of facts and false statements in relation to the same, was made after the commencement of the term from which he was removed, and the whole matter was thus carried into that term. The question arose upon the impeachment trial of Judge Barnard before the court of impeachments at Saratoga upon a motion to strike out the charges of certain offenses alleged to have been committed by the judge during a prior term of office. The judge had been re-elected, and his counsel claimed that such re-election had condoned all prior offenses, and that he had come anew into the possession of his office, approved by the judgment of the people, and certified as capable and. worthy to occupy the position and discharge the duties of a justice of the supreme court. 1 Trial of Barnard in Court of Impeachment, p. 147, et seq. The point was overruled by the court, and he was convicted as well of offenses committed during a prior term as during the term then existing.

The relator strongly urges that strong, grave errors were made by the common council in admitting and rejecting evidence, to his injury. We will not attempt to pass over the rulings in detail, but will notice some of the most important ones, that our position may not be misunderstood in regard to them.

In the proceedings of the common council, a resolution appears and was adopted under objection, whereby the council resolved to take judicial notice of, and to consider, all statements made by the relator, in both open and executive sessions, with reference to these stipulations, and matters connected therewith, and particularly to certain statements enumerated, which, as appears above, the relator substantially admitted. This proceeding was error. The common council could not act upon their own knowledge. People ex rel. McAleer v. French, 119 N. Y. 502; 30 St. Rep. 72. And had it not been substantially cured by the admissions of the relator, when sworn, that he had made those statements, substantially, a .grave question would arise as to our duty with regard to this error. The proceedings of the common council also shows that the report of the two aldermen above referred to was received, under objection, in evidence. It was doubtless meant to be received as a part of the history of the investigation, and not as evidence, strictly, as it was not in any sense evidence, and as such it was ■error to receive it; but, as the reports only set forth what was substantially proved by competent evidence, the relator was not seriously prejudiced thereby.

This court held in People v. Flair, 29 Hun, 125, that decision as to the admission and rejection of evidence cannot be reviewed by certiorari, under section 2140. To the same effect is People v. State Board of Assessors, 22 Week. Dig. 453; being both general term decisions of the old Fourth department. In People ex rel. Schabacker v. State Assessors, 47 Hun, 451; 14 St. Rep. 309. the general term of the Third department, speaking through Judge Parker, in referring to the rule laid down in last case cited, say:

“ I am not prepared to adopt fully the rule laid down by the •court in that case. Such a rule would render a court powerless to review the arbitrary action of a board like the state assessors in refusing to receive competent and material evidence bearing upon the issue to be determined. * * * And after an examination of the decisions of the court of appeals which resulted in establishing the rule which the framers of the Code of Civil Procedure incorporated in subdivision 3 of section 2140 leads me to the conclusion that a refusal to receive evidence absolutely essential to the protection of either of the parties would constitute an erroneous ruling of law, affecting the rights of the parties, within such subdivision.”

In People v. Board, of Supervisors of Fulton County, 74 Hun, 251, 253; 55 St. Rep. 888, the court say:

“ Although the court may review the action of supervisors, in extreme cases, in receiving or rejecting evidence offered on the audit of a claim against the county [citing the last case (47 Hun, 450)], vet ordinarily an error of the board of supervisors, or its committee, in receiving incompetent evidence, will cause a reversal of its determination; ” citing the cases in 29 and 74 Hun, and in 22 Week. Dig., supra.

The true rule to be gleaned from these cases, and which is consistent with the purposes and spirit of section 2140 of the Code, is that errors in the reception or rejection of evidence should be disregarded, if the tribunal had jurisdiction of the subject-matter of the investigation, and had conducted its proceedings in the mode required by law in order to authorize it to make the determination, and whether there was sufficient competent evidence in the case upon which the tribunal would be authorized to reach the determination which it made. The competent proof to sustain the charges given upon the hearing before the common council was •clear and conclusive, and was so, independent of, and notwithstanding the errors committed as to the reception of evidence. Had none of the errors with regard to the reception or rejection of evidence occurred, the result must have been the same, and consequently the relator was not prejudiced by any such errors.

The misconduct of the relator does not seem to have been corrupt, nor does it appear that he obtained any pecuniary advantage from it. Mistakes occurred during the progress of preparing the appeal, of a serious nature, such as omitting the statement that the case contained all the evidence and proceedings, and in permitting the city to be in default in serving the printed cases in time, and ether defaults which the record discloses; but stipulations extending time were executed on both sides, and considerable excuse was shown for the delays, in consequence of the voluminous nature of the evidence, and getting the stenographer’s minutes and in settling the case. The relator, instead of stipulating away the rights of his client when he got into difficulty at the general term, should have disclosed the facts, and applied to the court for relief, which he undoubtedly would have obtained. Instead of doing this, he obtains temporary relief from the other side at the sacrifice of his client’s interests, and all of his troubles have grown out of that mistake, and the fatal attempts to prevent its coming to the knowledge of his client. The relator insists that, notwithstanding all this, no injury came to the city. Injury is presumed where a substantial right of the client is violated or an imposition upon the client is shown. From these conclusions it follows that the determination of the common council in removing the relator is affirmed, and the writ of certiorari dismissed.

All concur.  