
    The People of the State of New York, Plaintiff, v. Harry Harris, Defendant.
    (Court of General Sessions of the Peace, City and County of New York,
    August, 1907.)
    Criminal procedure — Proceedings on review — Proceedings to obtain review — Application for leave to appeal — Affidavit — Suppressing affidavit.
    Where an affidavit made by defendant’s counsel upon a motion for leave to appeal from a conviction in a magistrate’s court unnecessarily charges the magistrate with official misconduct upon the trial, it will be returned to the end that renewal of the motion may be made with a lawyer like presentation of the facts which it is claimed show prejudicial error.
    Such charges when unnecessary are improper and scandalous; and, if true, they should be brought before a tribunal having power to remove the magistrate.
    Application for leave to appeal from a judgment of a magistrate’s court.
    William Travers Jerome, for people.
   Foster, J.

This is an application for leave to appeal from a judgment of the magistrate’s court, and for an order admitting the defendant to bail, pending the appeal.

The affidavit filed in support of the motion for the allowance of the appeal, I regret to note, is made by counsel (and not by the defendant himself). In this affidavit counsel says in terms and under oath, “That the treatment accorded him (defendant) by said magistrate, was absolutely unfair and prejudicial to the interest of the defendant-appellant. That he received absolutely no protection from the said magistrate, who should preside as a fair, impartial and unbiased official.”

Throughout the affidavit there are frequent other references to the alleged unfairness and undue prejudice of the magistrate; so that even a casual reading of this affidavit impresses one with the belief that, if the statements are true, the magistrate was unfit to be on the bench.

These charges should not be addressed to this court.

If true, they should be brought before a tribunal haying the power of removal. If untrue, they should not be made at all. Matter of Manheim, 113 App. Div. 137.

They are unnecessary on this application and, being unnecessary, are improper. Indeed, they are worse than improper ; they are scandalous, and, applying as they do to a magistrate who has no right to reply to them, they are cowardly.

A decent regard for the feelings’ of the magistrate and for the dignity of the magistrate’s court requires that such a reckless charging of official misconduct (and swearing to it, as a conclusion or opinion, without the statement of adequate facts to justify it), be rebuked, and “ severely condemned as eminently improper and inconsistent with the relations that must exist between the members of the bar and the judicial officers who are charged with the duties of administering justice.”

In Rudiger v. Coleman, 112 App. Div. 282, the court, in banc, says: It is to be regretted that the counsel for the appellants has polluted his voluminous brief by wholly unfounded aspersions on the conduct and motives of the learned trial justice. Because of this misconduct, all copies of the brief will be returned to him.”

Following this authority, I direct the clerk to return to counsel, in a sealed envelope, the papers on this application, to the end that a new application may be made with a lawyer like presentation of the facts, which it is claimed show prejudicial error, and thereupon a dignified and proper application for the allowance of the appeal herein may be made, and will be entertained.

Ordered accordingly.  