Law Practice in the Early Years

There were not a lot of job opportunities for our Albany Law School graduating class of 1963. A few classmates were the sons of practicing attorneys, and most of them joined their fathers’ firms. A very few got positions in bigger law firms, but many had to defer job hunting until completing military service, which had been deferred through college and law school. Some had no job prospects at all; I was part of that group.

After taking the bar exam in July, I started making the rounds of Troy law firms. I wanted to practice in Troy because the previous summer I had a non-paying internship at the Rensselaer County District Attorney’s Office and was familiar with the courthouse, the Supreme Court law library, and I had met several attorneys and court personnel. I started knocking on doors and finally got two offers. One offer was from Seymour Fox, who had a storefront office on River Street, and the other was from Steve Vinceguerra, who had a solo practice on the second floor of a brownstone multifamily building he owned on third or fourth street. Both offered a salary of $50.00 per week. I asked John T. Casey, the District Attorney for whom I had worked, and taken an elective criminal law course, which of the two offers he would recommend. He said it was a toss-up. I decided to go with Seymour Fox because I disliked the cooking smells that filled the air in Mr. Vinceguerra’s office and building.

I was given a small office and was promptly put to work drafting automobile accident and sidewalk fall down complaints. Law school did not teach us the art of drafting pleadings, although we were aware of form books. Seymour had a very active tort practice, and many of the pleadings were simply pro forma documents prepared by clerk typists, copying from pleadings used in other cases. Fortunately, another attorney, Frank DeCotis, was employed in the office. He was a contemporary of Mr. Fox, and perhaps a bit older than him. Frank had once been Seymour’s partner but left the practice for a time. He eventually returned as an employee. I frequently asked Frank for help, which spared me the humiliation of asking the clerk typists or secretary questions of a legal nature. Eventually, I was promoted to drafting bills of particular, affidavits in response to motions to dismiss or to timely respond to demands for bills of particulars. I had terrible handwriting but was an excellent typist, and Seymour provided me with an electric typewriter, which I used to churn out letters and documents.

For many years the procedural law had been governed by the Civil Practice Act. While I was in law school, the New York legislature enacted its successor, the Civil Practice Law and Rules (“CPLR”), which by its terms took effect on September 1, 1963. Accordingly, while we studied the Civil Practice Act during our freshman and junior years, we studied the CPLR during our senior year, and I was much more knowledgeable about its provisions than were most of the practicing attorneys. I was eager to impress Seymour with my knowledge. Shortly after September first, I was given an answer and demand for a bill of particulars in an automobile accident case. The defense counsel was an Albany law firm that specialized in tort defense for insurance companies. At the time many litigation documents were written on 8-1/2" x 14" legal size paper. I knew that the CPLR specified that legal pleadings were to be 8-1/2" x 11" in size. I returned the pleading to Carter & Conboy, the defense counsel, with a letter pointing out that the pleading did not comply with the provisions of CPLR Rule 2101 (a). I thought myself very clever, but a couple of days later I received a dressing down from Seymour, who had received a telephone call from an irate defense counsel. Seymour explained to me attorneys simply did not hold other attorneys to such technical perfection. (The pleadings were resubmitted, however, on the proper size paper).

Seymour’s office was somewhat unique for a law firm of its size in that it had a Xerox 914 plain paper photocopier. Because of it, typists only had to produce a good original document. Most law firms of that size didn’t have a photocopier, and typists usually had to make several carbon copies of documents. Spirit mimeograph copies were made for standard documents, such as a demand for bill of particulars, which only then required the typist to enter the parties’ names and a date. The Xerox was not very reliable and usually required at least one service call each week. The machine was rented, and the charge was by the number of copies made. Seymour kept a SCM photocopier as a backup but using it was a laborious process, as the copies came out wet and dried curled. (In the early 1970s, I rented a Royal plain paper photocopier that made excellent copies, but after a few months, the ink would literally fall off the paper.) Seymour liked technology and gadgets. He was one of the first local offices to buy an IBM Electric typewriter that recorded the keystrokes on magnetic tape so that documents could be easily edited - one of the first true word processors. Seymour also had an elaborate telephone call recording device that recorded all telephone conversations from his private telephone. The device was legal in New York, and Seymour wanted to be able to accurately recall every detail of his conversations.

Sy was not well-liked by many of the attorneys whose practice was primarily tort law. He was considered by some to be an upstart who they thought must have been an ambulance chaser to have developed such a large and lucrative practice so early in his career. I discovered the depth of that feeling on the day of my admission to the bar on November 14, 1963. Candidates for admission merely submitted a short form to the Third Department’s Character and Fitness Committee, with the signatures of three attorneys who vouched for the candidate’s good character and fitness to practice law. Mine was signed by then-District Attorney John T. Casey, another attorney whose name now escapes me, and by Seymour Fox. As we prepared to go into the Appellate Division Court Room on the 3rd floor of the Albany County Court House, each candidate would meet briefly with the committee, which welcomed them to the profession. To my horror, when it was my turn, I was told that I was not to be admitted because one of the local members of the Committee, an insurance defense counsel, said that Seymour Fox was himself not of good character. Finally, after some consultation with John O’Brien, the Clerk of the Appellate Division, the Chairman told me that I could be admitted, but that I should supply a new application signed by another attorney, and suggested Morris Zweig, my father’s attorney and a justice of the peace in my home town. When I told Seymour what had happened, he explained to me that some of the attorneys thought that he was getting clients by unethical means, and threatened a bar association investigation of his practice. As a defensive measure, Seymour employed several private investigators to interview accident victims represented by the attorneys who questioned Seymour’s ethics to determine why they chose their respective attorneys. He said that when it became know that he was having his critics professionally investigated, his critics quieted. During the nearly six years that I practiced with Seymour, I never once saw any evidence of unethical conduct. His practice thrived because he was tenacious and generally got quick settlements for his clients. Troy was a close-knit community, and word of mouth was his source of clients. He was also frequently recommended by some physicians since he always made sure that his clients’ medical bills were paid out of settlement funds. Seymour was glib, and an excellent trial lawyer, frequently being asked by other attorneys to try their cases. I never did submit the additional reference to the Committee.


The practice of law in the Capital District was much different in the 1960s than it is now. There were many fewer lawyers, and the practice was quite informal by today’s standards. Any attorney could issue a bare summons to commence an action without any court filing or payment of a fee. In most cases, stipulations to extend the time to serve a pleading or a bill of particulars, or to adjourn a proceeding, were done by telephone without a written follow-up. Seymour mentioned the names of about eight attorneys in the Capital District who he felt could not be trusted to uphold an oral agreement but said that all others would honor their word.

All motions were heard at a “special term” of court. In most courts of the Third Department, the special terms were held on Fridays, once or twice a month. In Albany, however, they were held every week because of the caseload, as most proceedings involving the State of New York had to be brought in Albany County. While a special term note of issue had to be filed with the clerk of the court to place the motion on the calendar, no fee was required. Special terms consisted of Part I, which were regular litigation motions and proceedings, and Part II, which was for uncontested matrimonial actions. (Before the enactment of “no-fault divorce” laws, all matrimonial cases, including uncontested and default matrimonial actions, had to be heard by a Supreme Court justice). Special Terms were exciting and educational for new attorneys. The mimeographed calendars were distributed the morning of the Special Term. There were frequently more than one hundred motions and special proceedings listed. The clerk would call out the cases in order, and the attorneys would yell out the responses for their cases, such as: “adjourned by consent”, “off”, “settled”, “20-day order by consent” or “order if no opposition”. Motions or proceedings that were to be argued were noted by a call of “ready for the plaintiff” or “ready for the defendant”. If there was a routine consent order or a default order, it would be handed up to the judge who would usually sign it and hand it back. After the calendar call, the Part II judge would hear matrimonial cases in chambers, usually in a conference room, while the Part I justice would listen to oral arguments of the contested motions or proceedings. It was the practice in the Third Department that the motion papers would be handed up to the Part I justice at the start of the oral argument, and the judge hearing the argument had no prior knowledge of what it was about until the start of the argument. In contrast, the practice in the neighboring Fourth District required that motion papers be submitted to the Part I judge several days in advance of the special term, and as a result the Part I judges there were in a much better position to understand the issues before them. The real benefit to the new lawyer was that the special terms gave him the opportunity to become familiar with other attorneys, judges, and court personnel, and to learn the rituals of the court. I quickly learned that Justice Edward Conway was both knowledgeable and gracious to all attorneys, while Justice Isadore Bookstein was someone to be avoided except for consent orders.

Shortly after I was admitted to practice, Seymour introduced me to an alternate procedure for handling uncontested divorces. Some clients from Rensselaer or Albany County didn’t want their divorce to be public knowledge. For those who could afford the additional expense, a quick trip to Mexico was the solution. The client would be met at the airport by the Mexican attorney, taken to a hotel, and the next day would appear before a Mexican judge who would grant the divorce. The Mexican attorney would then forward both a judgment written in Spanish and an English translation.

For those clients who could not afford or want a Mexican divorce, the solution was a trip to Schenectady. Although an action for divorce is usually brought in a county in which one of the parties resides, it could be brought in another county if there was no objection. One day Seymour brought me with him to an uncontested divorce hearing in the Schenectady County Court House. The hearing was held in the chambers of Supreme Court justice Charles M. Hughes. Instead of a court stenographer recording the testimony with a stenotype machine, the minutes were kept in shorthand by Marie, the judge’s private secretary. Seymour left a proposed Decision and proposed Judgment with Marie, and a few days later, Marie mailed back the pleadings and the signed Decision and Judgment, together with her stenographer’s bill for twenty-five dollars.

Shortly thereafter, Seymour arranged for me to bring a divorce client to Judge Hughes and I followed the same procedure. Judge Hughes listened to the testimony and indicated that the divorce was granted. The next time I called Marie and set up a divorce hearing, I was in for a surprise. Judge Hughes wasn’t there, but Marie said that we should start the testimony anyway. This development caught me off guard, and when I neglected to ask some pro forma questions, Marie would ask them of the client. The transcript that I received indicated that Judge Hughes had asked those questions. This procedure was thereafter routine. Divorce hearings were scheduled in the afternoon at a mutually convenient time. Sometimes Judge Hughes would be in attendance, and more frequently he was not.

I handled most of the Troy Police Court cases for Seymour. He didn’t relish routine criminal cases but took them when asked to keep his contacts within the community and his name in the newspaper. The defendants were frequently clients or relatives of clients. Most of the criminal cases were minor misdemeanors and were resolved by a plea bargain. Neither the part-time police judge, nor the part-time assistant district attorneys, were much interested in a trial, and a defense demand for a jury trial frequently helped bring about a satisfactory resolution. Frequently, in the case of young men without a prior criminal record, there was the military disposition. Military recruiters frequently showed up in Police Court and were more than happy to review the record of such defendants and advise the court and the attorneys whether the defendant was eligible for enlistment, except for the pending criminal charge. Faced with possible jail time and the disgrace to him and his family, many young men agreed to enlist. Upon their acceptance, the criminal charges were dismissed. In fact, I once arranged a military disposition for a cousin who was a student at Hudson Valley Community College. He had done something dumb and been arrested. Although I suggested that he join the Army, he insisted on becoming a Marine, which, as it turned out, was not a good choice for him. He couldn’t take the rigors of boot camp and soon was discharged.

Fees and costs were very low by today’s standards. Except for tort claims in which the plaintiff’s fees were usually equal to one-third of the settlement or judgment, plus expenses, attorneys’ fees were calculated quite differently. Each county bar association published a list of minimum fees that its members could charge, and it was an ethics violation to charge less than the scheduled amount. That eventually changed when the United States Justice Department determined that minimum fee schedules constituted an illegal restraint of trade. When the minimum fee schedules were in effect, most attorneys charged by the type of transaction, rather than by an hourly charge. Many lawyers prepared wills without charge, hoping to get to represent the estate when the client died, and it was not uncommon for the attorney to insert a provision in the will specifying that the attorney was to be retained to handle the client’s estate.

Once I was admitted to practice, Seymour raised my salary to $55.00 per week, but I was required to give him 1/3 of any private practice fees that I developed on my own. Later, as an incentive to stay, He named the practice “Fox, DeCotis & Honig”, and Frank and I were to split 1/3 of his negligence fees as a bonus. That worked for a short while, but eventually, Seymour felt that our bonuses were too large, and did away with that arrangement, instead by giving us both substantial salary increases. Knowing that I would never be a real partner in the firm, I left in March 1969 and opened my own practice.  I rented office space from Lawrence Connors at 41 Second Street on the corner of Second Street and Broadway and had use of his secretary and library.  Larry was an interesting and affable fellow.  He was the nephew of Marty Stack, the Rensselaer County Clerk, and a power in the Rensselaer County Republican Committee.  Through that connection, Larry had been appointed Troy Corporation Counsel.  His legal acumen was somewhat limited, but he bragged that he knew which other lawyers he could call to find out the answers to legal questions,  and not have to do much research himself.  His political/legal career had come crashing down when it became known that he was the "13th man" arrested (but released without being charged) in a gambling raid conducted by Troy police officer George Dodge, who arrested a group that had a regular friendly card game.  It was said that Officer Dodge undertook to arrest some locally prominent individuals in retaliation for having his shift changed. I later represented Larry in a hearing before the New York State Commission of Investigation, which conducted hearings in New York City and Troy into alleged corruption practices.  Larry was never charged with any wrongdoing and unfortunately died quite young a few years later.

When I opened my own practice I only had about half a dozen files of my own, but I had acquired some professional credibility and public awareness as a result of the reapportionment action that I had brought against the County and was frequently mentioned in the newspaper when I appeared as a criminal defense attorney for Mr. Fox's clients.  Shortly after opening my practice, I was offered the assignment to represent Edward F. LaBelle in the retrial of his murder indictment.  He had previously convicted, along with his brother, Richard, of the 1963 rape and slaying of a teenage girl from Cohoes, whose body had been found in a culvert in Schaghticoke.  Originally both he and Richard were found guilty and given a death sentence, but the Court of Appeals reversed the conviction and ordered separate trials.  Thomas J. O'Connor, a former Troy Police Court judge and Public Defender, represented Richard in both trials.  No other Troy criminal attorney wanted the assignment because all knew it was going to be a lengthy trial for little compensation, and the notoriety of being associated with a defendant charged in a heinous crime.  Edward was again convicted.  He received a life sentence and eventually died in prison, never having asked to be paroled. (Richard was eventually paroled).  

I had met James J. Reilly when I interned in the Rensselaer County District Attorney's Office during the summer of 1962.  He was a part-time Assistant District Attorney then, and I started handling some matrimonial cases for him. He had been sharing space with a relative through marriage, Matthew Dunne, but had the chance to rent an attractive turn of the century building at 54 Second Street, with the option to buy it.  He invited me to join him, and we used the firm name, Reilly & Honig, but our practices were separate.  It was an expense sharing relationship and we eventually bought the building and stayed together until the mid-1980s when I moved my practice to Albany. "Country Jim" (distinguished from "City Jim" - another attorney with the same name) was very low key but had a fine legal mind and a droll sense of humor.  We usually had lunch together every day absent conflicting schedules. 

My First Jury Trial

Although I started handling criminal cases from the day following my admission to the bar when I was assigned a larceny case in Rensselaer County Court, and routinely went to criminal courts on a variety of matters, most were disposed of by a plea agreement or dismissal, and some times by a trial before the judge without a jury.

My first solo jury trial took place in April 1965, in the City Court in Cohoes, an old, decaying factory town in Albany County, across the Hudson River from north Troy. Cohoes, much like the City of Albany, had long been solidly entrenched in the hands of the Democrat party. William Dawson was the political boss of Cohoes, but his organization had recently lost control of the city government in 1964 to the new Citizens Party, led by a local doctor and a group of reformers. Dawson’s leadership was then looked upon with disfavor by the Albany County Democratic organization. Although his legal expertise was title insurance, not litigation, the Citizens Party installed Frank Landry as the City Court judge.

Soon after taking control of the government, the Citizens Party leadership hit upon a plan to further reduce Dawson’s influence in Cohoes. Dawson controlled a local newspaper that was really his party’s main political communication with the voters. It was called “Newsweekly Newspapers”, published by Newsweekly Newspapers, Inc., which Dawson said was owned by him and the Democratic Party of Cohoes. It naturally was very critical of the Citizens Party and its governmental administration.

Paul G. VanBuskirk, the executive assistant to Mayor McDonald, filed a criminal complaint against Newsweekly Newspapers, Inc., charging a violation of New York General Business Law Section 330, which requires that:

“Every newspaper, magazine or other periodically printed publication published in this state, shall publish in every copy of every issue, upon the editorial page or in one of the first four pages of the publication, the full name and address of the owner, owners, proprietor or proprietors of such publication; and if said publication shall be owned or published by a corporation, then the name of the corporation and the address of its principal place of business shall be published, together with the full names and addresses of the president, secretary, and treasurer thereof; and if the said publication shall be owned or published by a partnership, limited partnership, or an unincorporated joint-stock association, then the full names and addresses of the partners, or officers and managers of said partnership, limited partnership or unincorporated joint-stock association shall be published in like manner. The representative capacities of those named shall be indicated in like manner.”

Bill Dawson was friendly with Seymour Fox, the Troy attorney who I had been working for since graduating from law school in 1963. He asked Seymour to defend his newspaper, but Seymour didn’t want to get into a political fracas, particularly one in which the defendant corporation was in clear violation of the statute. Seymour suggested that I handle the defense, and I jumped at the chance.

The prosecutor was William Gray, an Albany County Assistant District Attorney, and Richard Kohn, a law school classmate who had recently joined the District Attorney's Office. From the outset, it was clear that there was not going to be any plea bargain or compromise, and I demanded a jury trial. I had Robert Clark, the nominal president of Newsweekly Corp., file a similar criminal complaint against the Capital Newspapers, part of the Hearst Corporation, since its Albany papers, The Times Union and The Knickerbocker News, also were in clear violation of the statute. (Although the Hearst Corporation appeared to defend the complaint, that case mysteriously died before the scheduled May trial). Judge Landry did not find that Newsweekly Corp. was being selectively prosecuted, even when shown that none of the other newspapers circulated in Cohoes, including the New York Times and the Wall Street Journal, failed to comply with the letter of the law.

A six-person jury was impaneled on Monday evening, April 12, 1965, and the trial went into the late hours and then was continued the following morning. Not surprisingly, Judge Landry denied every motion and objection I made, including one that he disqualify himself as being a member of the Citizens Party. The jury returned a verdict of guilty, and Judge Landry fined Newsweekly Newspapers, Inc. $250.00 on each of the 14 counts of the complaint, for a total of $3,500.00, which was paid.

I filed an appeal in the Albany County Court but did not immediately push the appeal forward. Two years later, when Albany’s affection for the Citizens Party waned, and there was some new blood in the Cohoes Democratic Party, I submitted a brief and finalized the appeal for the now-defunct newspaper. In June 1967, Albany County Judge Martin Schenck granted my appeal and reversed the conviction on the grounds that Section 330 was unconstitutional in violation of the right of freedom of expression. He ordered the fine returned.

Click to read:

Reapportionment

I enjoyed the practice of criminal defense law. I was admitted to the New York bar on Thursday, November 3, 1963, and the next morning I received a call from the clerk of the Rensselaer County Court, telling me to report at 10:00 a.m. for a criminal assignment. That was prior to appellate court decisions and the passage of a law in New York that provided for payment of assigned counsel, and the county judge was always on the lookout for newly admitted attorneys to give “pro bono” assignments for the representation of indigent criminal defendants. Actually, I, like most newly admitted attorneys, welcomed the assignments because it provided immediate court experience, and we didn’t have to answer to a fee-paying client if we didn’t perform well. In 196_ New York enacted legislation that provided for the formal system for the defense of indigent criminal defendants, and Rensselaer County established the office of the Public Defender. In the event of a conflict of interest by the Public Defender, such as when there were multiple defendants who might blame each other for the crime, the courts would continue to assign individual attorneys, who were paid $10.00 per hour for each hour spent out of court, and $15.00 per hour for each hour spent in court in the defense of the client, for a maximum total fee of $350.00 in most cases, and $750.00 in capital cases.

The first Public Defender was Thomas J. O’Connor. Tom was an older attorney who had been the Troy Police Court Judge at one time and was a very effective criminal defense attorney. He was given two part-time assistants, Jim Reilly and John Burke, both of whom had been assistant district attorneys when the office was under the control of a Republican district attorney, but who had lost their jobs when M. Andrew Dwyer, a Democrat, was elected to that office. I had become quite friendly with Tom from the time I started practicing criminal law in 1963. (When I first came to Troy Police Court, he referred to me as “the Jewish kid from Fox’s office.) During those early years, Tom was my informal mentor. After Tom was appointed Public Defender, I let it be known that I would like to join his part-time legal staff if a position became available.

Rensselaer County was governed by a Board of Supervisors, as were most upstate counties. New York’s County Law provided that the Supervisor from each town and the Supervisor from each ward in the cities in the county constituted the Board of Supervisors. All members were part-time elected officials who served two-year terms, and the majority party elected one of their members to be Chairman and appointed the Clerk of the Board. Unlike the members, the Clerk was a full-time employee who ran the day to day operation at the direction of the Chairman.

Although the Board of Supervisors was traditionally under the control of the Republican party, their majority was dwindling. The Democrats had gained strength and elected Supervisors even in traditionally Republican towns, including my family’s home town of Nassau. My uncle, Harry Honig, had been a Justice of the Peace for several years there, and subsequently was elected Supervisor. When he retired, he was followed by Earle Cooper, an attorney. Earle was defeated for re-election by Sylvester “Whitey” Currier, the first Republican to be defeated for that office since his father, Ralph Cooper, was defeated decades before. Whitey was very popular. The Curriers were an old Nassau family, and Whitey was smart and very likable. He had been a pilot during World War II, and when his P-47 fighter developed mechanical problems in the Boston area, he rode it down to a crash landing in a wooded area to keep it from falling into a populated area. 

One day Tom called me into his office and said that Joe Casey, the Republican County Chairman, wanted to get Nassau back under Republican control, but the party had no candidate that he believed could defeat Whitey Currier. Joe felt that the only chance to win the office back was to run my uncle Harry against Whitey, but Harry was quite adamant that he had retired from politics, and besides, Harry liked Whitey. Tom told me that Joe had asked me to intercede with Harry and if I could persuade Harry to run and the Republicans maintained control of the Board of Supervisors, Tom could appoint me as an assistant public defender the following January, when appointments were made for two-year terms. I went to Harry, and he reluctantly agreed to be the candidate for my sake. He won the election.

On the morning of January 5, 1968, Tom presented me with a letter appointing me to the office of an assistant public defender. I brought it to the County Clerk, who swore me in, and I signed the Oath of Office book. The Troy Record photographer took a photograph of me being sworn in by the County Clerk, with Tom looking on. I went to the Public Defender’s office and filled out the usual employment forms for tax withholding, health insurance, and the retirement system. Later that afternoon I received a telephone call from Lenore Coleman, Tom’s confidential secretary. Lenore said that there was a problem, and my appointment had to be put off for a few days until the Board of Supervisors amended the budget to appropriate funds for my position. I was very disappointed, but Tom told me that it was an oversight, and the Board of Supervisors would make the appropriation at its next meeting.  My oath of office that I executed that morning was covered over with another oath of office, carefully scotched tape over mine.  (During January 2020, I went to the bowels of the Rensselaer County Clerk's Office and found the 1968 Oath of Office book.  Ironically, my oath had been covered over with the oath of James Reilly, who later became my law office associate.  The scotch tape had dried out, and when I opened the book the two oaths were uncovered. )

The Board of Supervisors met a few days later but didn’t make the appropriation. Tom was very upset and said that he was told that I should take John Burke’s place. We both agreed that it wouldn’t be proper for me to replace John, and that had not been part of the arrangement. Tom reported that back to the Republican hierarchy and said that he was told that the appropriation would be made in February. Before the February meeting, however, Seymour Fox, the attorney with whom I was associated, told me that his friend, Dr. Carl DeLucia, told him that I was not going to get the job. Dr. DeLucia was a close friend of Dean Taylor, a former Republican County Chairman and Representative in Congress. The reason, I was told, was that I had incurred the wrath of Dr. Richard Drumm, the Schodack Supervisor. We moved to Schodack in 1964. At first, Nedda and I became active in the local Republican organization. I even incorporated the Schodack Republican Club, Inc. in 1966, and Nedda and I were charter members. The problem began when I was retained to represent an elderly man who lived in a mobile home on a lot that he owned. The town board passed an ordinance that required mobile homeowners to get a special permit and pay a fee in addition to real property taxes. The town building inspector charged my client with a violation of the ordinance for not having a permit, a criminal offense. I demanded a jury trial, and the jury convicted him, following the justice of the peace’s directions. The town board was upset, because a jury trial was expensive, and I said that I would represent anyone else that they prosecuted for a similar offense without fee, and would demand a jury trial in each case. The town stopped enforcing the ordinance by criminal prosecution, although most mobile homeowners complied and paid the fee anyway. The Schodack Republicans were also very upset with me for representing two party members who challenged the party regulars in the 1967 primary election, even though my clients failed to win the primary.

The practice was that the County Republican Chairman would ask for the approval of a proposed appointee by the appointee’s local Republican chairman. In my case, the approval was not forthcoming because of my defense of mobile homeowners and for representing the primary challengers.

I was angered and frustrated, as I had considered the appointment to be a sure thing since Harry agreed to run, and there were to have been no other strings attached. I knew that I had no legal recourse, although I probably could have salvaged the position had I gone hat in hand to Dr. Drumm and said that I would no longer defend trailer owners charged with violation of the town ordinance, and generally fall into line with the town Republicans.

All New York appellate court decisions and lower court decisions of interest were published by the official court reporter. To subscribers of the hardcover books, the official reporter would mail the “Advance Sheets”, the softcover advance copies of the decisions. These came out two or three times a month, and it had been my habit to bring these home to read as a method of keeping current on New York law. I would usually skim all of the cases, even in areas of the law in which I had little interest. I recalled having read a decision from one of the Long Island counties in which the subject matter involved the equal representation of voters in local legislative bodies. I believe that it was called Greenberg v. Board of Supervisors. That New York case was based upon a United States Supreme Court decision, Reynolds v Sims, which mandated “one man, one vote” for legislative representation. From my brief reading of that decision, I knew that Rensselaer County Board of Supervisors, like most county legislative bodies in New York, did not measure up to the one man, one vote standard, as it was created under Section 150 of the County Law which prescribed that the board consisted of the Town Supervisor of each town in the county, plus the Supervisors elected in each ward of the cities.

I realized that I could have my revenge! There were no form books to guide me in the preparation of documents for the litigation, so I started going to the New York State Law Library, which maintained a copy of every appellate court record on appeal. A record on appeal consists of all of the legal documents and lower court decisions in each case. I photocopied the record on appeal of the Greenberg case and a couple of other cases that had followed it and made my own manual. I needed a plaintiff; someone with standing to bring the lawsuit against the Board of Supervisors. The ideal plaintiff was my wife, Nedda. The town of Schodack had a large population compared to the very rural towns in the county, such as Stephentown, Grafton, and Petersburg, but each of the towns had one elected representative on the Board of Supervisors. I told no one of my planned litigation, hoping that the politicians would yet honor the commitment that I had been given. There was a little movement; although Tom O’Connor continued in his efforts to get the additional appropriation to hire me.

For a couple of weeks, I spent every evening typing pleadings. Finally, just before the March meeting of the Board of Supervisors, I completed the summons, notice of petition, complaint, and petition, entitled:

STATE OF NEW YORK
SUPREME COURT COUNTY OF RENSSELAER
----------------------------------------------------------------------------------
NEDDA R. HONIG, on behalf of herself and all other persons
similarly situated,

                                                          Plaintiff - Petitioner

                              -against-

THE BOARD OF SUPERVISORS OF RENSSELAER COUNTY
and THE STATE OF NEW YORK,

                                                Defendants - Respondents.
------------------------------------------------------------------------------------

Nedda signed the complaint/petition, and I notarized her signature and made multiple copies of the pleadings. In those days, it was not necessary to file any papers with the court or the clerk before starting an action. The litigation sought a declaration by the New York Supreme Court that the Board of Supervisors was improperly apportioned; that under County Law Section 150, insofar as it mandated the structure of the Board of Supervisors, was unconstitutional, and directing a reapportionment of the Board of Supervisors consistent with the “one man, one vote” precedents.

On my 30th birthday, March 12, 1968, I went to see Jack Manning, the full-time Clerk to the Board of Supervisors. I asked him if there was a resolution on the agenda for that evening’s monthly meeting to appropriate funds to enable the Public Defender to hire an additional part-time assistant. Jack was a former Troy police officer who had been appointed Clerk after his retirement from the police force. He was a decent guy and seemed genuinely embarrassed to tell me that the resolution was not on. I handed Jack the pleadings and told him that it was a present from me to the Board.

The next morning the clock radio woke us up, as usual, to the 6 a.m. news on WGY. The news broadcast started with Dick Beech announcing that “a Schodack housewife has sued the Rensselaer County Board of Supervisors complaining that she is not properly represented...”

The result was interesting to observe. At first, the politicians considered the lawsuit to be just an irritant, as local governments frequently are sued by residents whose claims are dismissed as meritless. It did not take long, however, before all realized that my lawsuit created a new dynamic in Rensselaer County politics. The Republicans, who for many years maintained control of the Board of Supervisors, realized their vulnerability; the Democrats, who had gained some vitality by electing some candidates to county offices in the Goldwater year, sensed an opportunity.

The initial court appearance was before T. Paul Kane, a Supreme Court justice from Schoharie County, who had been assigned to preside in Rensselaer County for the month. Judge Kane, a former district attorney, was a Republican. He was a tall man with silver hair and an even demeanor. The Board of Supervisors was represented by the County Attorney, James T. Ronan. Jim, like all Rensselaer County Attorneys until 1984, held the office on a part-time basis. He was a member of Wager, Taylor, Howd, and Brearton, a prominent Troy law firm, one of whose members, Dean Taylor, was the local representative to Congress, and a former Republican County Chairman. Although the State of New York was officially represented by its Attorney General, Louis Lefkowitz, a Republican, the Assistant Attorney General assigned to the matter was Robert W. Imrie, an older attorney who represented that office in all prior reapportionment cases, and who was generally considered to be the most knowledgeable reapportionment attorney in the state. Mr. Imrie’s legal position was consistent with mine, which he made clear to Judge Kane during the oral argument. The Democrats intervened in the lawsuit. The minority Democratic leader, Joseph Manupella, was represented by Thomas Kenny, and while their position favored reapportionment because they could not get control under the existing law, they always proposed reapportionment plans that would be most helpful to their candidates.

Once it was clear to the Republicans that there would be reapportionment, they sought to comply by offering a plan of weighted voting. Under their plan, the Board of Supervisors would continue, but each Supervisor would have the number of votes corresponding to the number of voters in their district. They hired an expert from Columbia University to prepare an analysis of the weighted voting plan for the Court, but Judge Kane rejected the plan and directed the Board of Supervisors to devise a plan for the creation of a County Legislature to be elected in the 1969 election.

Several plans were drawn up and submitted to the Court, which finally selected a 15 single-member district plan that I had submitted. Judge Kane’s selection of the plan was upheld by the Appellate Division as an interim plan only. The Republicans were furious since the town Supervisors wanted to continue as members of the County legislative body as well as being the head of their town governments. They had the County Attorney prepare a local law that would permit the Supervisors to also be members of the County Legislature, the so-called “two hats” law. I told Jim Ronan that if they passed the law, I would immediately bring another lawsuit to declare it illegal as being in violation of the Public Officer’s Law. I believe that Jim got an oral opinion from Robert Imrie that if any Supervisor were also elected to the County Legislature, he might forfeit the first office when he took the oath of office for the second one, and Jim convinced the Board of Supervisors to give up on that plan.

The Democrats were elated. County Court Judge Timothy Fogarty called me to his chambers and asked if I would run for the County Legislature from the new district that included Schodack as the candidate of the Democratic party. I told him that I would not, as I was a Republican, albeit a disenchanted one. A few days later, he brought me back to convey that the Democratic County Chairman, Edward McDonough, said that if I wanted to run as an independent candidate, the party would fund my campaign. Again, I declined.

The Democrats won control of the first County Legislature. Before the election, Joseph Casey, the Republican County Chairman, was indicted following a lengthy investigation into corruption by the State Commission of Investigation. The Republican party was in disarray and turned to Raymond Siek in 1970 to take over the county committee and cleanse its image. Ray was the manager of Ford Motor Company’s Green Island factory. He had no background in politics, but he had an unblemished personal reputation. He accepted the job with the understanding that he was going to be the absolute boss. He enlisted his top aide at the Ford plant, Nicholas Pinchuk, to work with him, and for several months Nick spent much more time working for the Rensselaer County Republican Committee than he did for Ford.

A few weeks after Ray took over the party, his secretary telephoned me and asked if I would meet him and Nick for lunch at the Troy Holiday Inn. (The Holiday Inn was also the location of the Republican Party Headquarters). I agreed, and he told me his plan to clean up the party. He asked me to help by writing new by-laws for the organization, and when I agreed he installed me as vice chairman for legal affairs. As a token of appreciation, he provided me what was then a party chairman’s “perk”, namely my MIH vanity license plate, which I kept until I moved to Florida in 2003. (It was not until several years later that vanity plates became available for purchase by the public in New York).

With control of the new County Legislature, the Democrats drafted a new legislative reapportionment plan based on the 1970 census and required by the Court.  At the request of Ray, I drew up a couple of different plans which favored the Republicans.  The matter came on before Judge Kane again, and he disallowed the plan submitted by the Democratic County Legislature and ordered one of my plans to be used for the 1971 election.  The Democratic County Attorney, Bill Jubic, appealed to the Appellate Division of the Supreme Court, which affirmed Judge Kane's decision.  Mr. Jubic then appealed to the Court of Appeals, the highest court in New York.  This was my first oral argument in the Court of Appeals.  The evening before the oral argument, Nedda and I took down 2 roll-up window shades from our home and pasted "exploded" views of the different plans on the shades, which rolled up like scrolls.  I unveiled them before the Court, whose members seemed both amused but impressed.  The Court of Appeals affirmed the lower court's decision. The Republicans, reinvigorated by Ray Siek and the new legislative districts, took back the County Legislature in the November 1971 election by a slim 1-member plurality, and I was appointed County Attorney, a part-time office I held until the mid-1980s when I resigned because of the press of my private practice.  

Although the election was over and the Republicans took over the County Legislature, the Court still retained jurisdiction because the law required that the plan be adopted by a formal local law. The Democrats, out of office, but still being an intervening party in my reapportionment lawsuit, brought it back before the Court with the intention of having a new districting plan ordered for the 1973 election.  We all then realized that I was still the attorney for the plaintiff (Nedda), and as County Attorney had become the attorney for the defendant County Legislature, the successor to the Board of Supervisors. The conundrum was resolved when I advised the Court that “I discussed the situation while in bed with the plaintiff last night, and she gave me permission to withdraw.” Papers were signed in which I ceased representing Nedda, who continued in the lawsuit “pro se’”,  technically representing herself. 

Prior to the 1971 election, the County Legislature adopted a local law providing for a county executive to be appointed by the County Legislature, similar to the form of government in effect in the City of Troy, which was dominated by the Democrats.  The local law was subject to a mandatory referendum, which was defeated, probably because of the history of failed appointed city managers in Troy.  With a bi-partisan commission, I drafted a new county charter proposal that differed from the failed law.  The new plan provided that the chief executive officer would be elected at large in the County, and this plan was approved by the voters.  The Democrats nominated a prominent Troy politician for the office, but the Republican candidate, William J. Murphy won handily.  (It did not hurt his candidacy that he lived in a Republican town, and was half Irish and half Italian, the two largest ethnic groups in Troy)  The Republicans have never since lost control of the office of County Executive or the County Legislature.  

Notes:  Now that so many years have passed, there is no harm in telling that Mr. Murphy was not Ray Siek's first choice to be the first County Executive candidate.  At Ray's request, I approached the late Edward "Ned" Pattison, a lawyer from a prominent family, and asked if he would run for the office as a Republican.  Ned, a Democrat, had been elected to Congress during the Goldwater Year, and after losing his bid for re-election to Congress was elected County Treasurer.  Ned declined and asked me to thank Ray for the offer.   

When the control of the county legislative body changes, the successful party generally installs its own party members in non-civil service positions.  When the Republicans regained control of the County Legislature and I was appointed County Attorney, among the Democrats they intended to replace, was Whitey Courier, who was in charge of the Tax Mapping Department.  Soon after I was admitted to the bar in 1963, Whitey, then the mayor of the Village of Nassau, appointed me as the Village Attorney.  To return the favor, and perhaps because I was partly responsible for his election defeat by my uncle, I insisted that he not be replaced by a Republican, and he continued in that position until his retirement.

Assistant District Attorney

I had a short career as an assistant district attorney in Rensselaer County. In August 1971, Con G. Cholakis, the district attorney who had been my adversary in a series of criminal cases and appeals, invited me to join his part-time staff of assistant district attorneys. I readily accepted, as I personally liked “Gus”, and I was growing weary of representing low-lives, who usually didn’t show any appreciation if I obtained a favorable result for them, and who usually were guilty. Also, I wanted to experience what it was like to be on the “other side of the fence”. It was an easy and enjoyable transition from a criminal defense attorney to a prosecutor. There were great resources available to the prosecutors. The police agency that arrested a criminal defendant was obligated to do any follow-up investigation, and the office also enjoyed the services of Jack Dwyer and Joe Burns, two experienced police officers who were employed full-time as investigators. Additionally, the prosecutor could choose to not prosecute a weak case, or to plea bargain down a questionable case.

The assistants would rotate handling cases. We were all part-time employees with private law practices. Troy Police Court, which seemed to provide the bulk of cases handled by the office, usually took up the mornings for one or two weeks each month, depending upon the rotation. The same assistant would usually handle subsequent felony hearings for defendants arrested during his rotation, and present the case to a grand jury. We would also handle town court cases one or two evenings a week.

I was very familiar with the workings of the district attorney’s office. I took a summer job in that office between my second and third years of law school. The summer jobs in county agencies were usually given to the high school or undergraduate college students who were children of political committeemen of the party that controlled the agency, but I was able to get the job because my uncle, Harry Honig, was the Nassau Town Supervisor. I had just completed a criminal law elective which was taught by John T. Casey, then the District Attorney and an adjunct professor at Albany Law School. I was not expected to do much more than observe, as summer help wasn’t expected to do much work. However, I usually went to Troy Police Court each morning with one of the three assistants, Jim Reilly, Pierce “Bud” Russell, or John Burke, and they utilized me to do research and draft court documents, thus freeing more of their time for their private practice. I was given access to all of the open and closed files, and sometimes found closed cases involving people I knew, including a criminal prosecution involving the sexual activity of a couple of high school classmates. There were no trials to watch because the Supreme Court and the County Court did not hold trial terms during the summer months. I was a good typist (out of necessity because I have terrible handwriting), and Kay James, Mr. Casey’s confidential secretary, frequently asked me to write letters reducing motor vehicle charges in town courts “in the interest of justice”.

A couple of months after I became an assistant, a book store opened on Broadway in Troy. Soon complaints rolled into the police that the store was selling pornography. This was in the days of Ozzie and Harriet reruns, and the citizenry was outraged that such materials should be sold at all, particularly across from the Post Office and within a couple of blocks of two churches. Gus asked me to look into the situation, so one morning I enlisted Jack and Joe and we went to the book store and looked at the merchandise. Although some of the magazines were of the Playboy genre, there were a lot of magazines and 8 mm movies with suggestive covers that probably would have shocked Ozzie and caused Harriet to faint. I decided that there was sufficient evidence for a prosecution. Jack and Joe locked the door and announced that they were police officers and were arresting the sales clerk for the sale of pornography. At the time there were a couple of patrons in the store who panicked at finding themselves locked into the store where an arrest for pornography was taking place. Jack and Joe took their names and let them out of the store. We filled several boxes with the most pornographic magazines that we could find, as well as the movies that had the most suggestive titles, and brought them back to the office. The clerk, a young man who was merely an employee, was charged in Troy Police Court with the sale of pornography.

We learned that the store was actually leased by a Massachusetts corporation, and I received a telephone call from its attorney who told me that the corporation had several such stores in New England and the Troy store was it's first in New York. He told me that “accommodations” could be made if the prosecution was dropped, a suggestion that I didn’t care for. I told him that he had a serious problem because the Massachusetts corporation hadn’t filed the necessary papers with the New York Secretary of State to conduct business in New York, something which he said must have been overlooked, and which he promised to correct.

When the clerk’s case came on for a hearing in Troy Police Court, he was represented by a prominent local attorney hired by the corporation. The attorney gave an impassioned statement that it was wrong to criminally prosecute this young man, who was merely trying to earn a living selling what he had been told was perfectly legal merchandise. I told the court that I agreed, and went on the record dismissing the charge and granting him immunity from prosecution. The attorney’s pride at having convinced me to drop the charges against his client faded away when Jack immediately handed the clerk a subpoena to appear before the grand jury the next day. Having immunity, the clerk had to testify, and the grand jury handed up a sealed indictment charging the Massachusetts corporation with the pornography crime. By then the corporation had filed its certificate to do business in New York, a condition of which required the corporation to agree to the jurisdiction of New York courts for acts committed in the state, and appointed the Secretary of State as the corporation’s agent to receive and forward legal process. The indictment was thus served.

The Massachusetts corporation did not roll over. It immediately commenced a lawsuit against Gus, me, and the County of Rensselaer in the United States District Court for the Northern District of New York to enjoin the criminal prosecution as a violation of free speech, and for damages. The first appearance came on in the federal court in Albany before Judge Foley, a resident of Troy. The corporation’s attorney made a very eloquent presentation, but Judge Foley protested that he didn’t know what was or was not pornography, and refused to look at the several examples I tried to hand up for his inspection.

After some conferences with the corporation’s local attorney, a compromise of sorts was reached. The corporation withdrew its lawsuit, closed the book store with an understanding that it would not return to Rensselaer County. The corporation pleaded guilty to a reduced charge and paid a fine.

One morning I returned to the District Attorney’s office just before noon to drop off the morning's Troy Police Court files. It had been a busy session. I was eager to get back to my private office to check my calls and go out for lunch with Jim. When I walked in, Tess, Gus’s confidential secretary, told me that Gus wanted me to cover for him at a convocation of mental health professionals being held at the Veteran’s Administration Hospital in Albany. Gus was scheduled to be a speaker at the one o’clock session to give a prosecutor’s viewpoint on suicide prevention and other legal mental health issues. Unfortunately, Gus was tied up in a trial in County Court and couldn’t break free to fulfill the commitment.

As I drove to Albany I thought about what I could say about the legal aspects of suicide prevention to a group of psychiatrists and psychologists. Mentally I pieced together a brief talk that centered around one method once used in the United Kingdom to discourage suicide: all property owned by the person committing suicide would be seized by the Crown, the thought being that no one would want to financially punish his family by impoverishing them by his suicide.

I arrived at the VA Hospital and was ushered into the auditorium and onto the stage just as the group returned from lunch for the afternoon session. Gus was one of three scheduled speakers, the others being a minister and a New York State Police senior officer. The minister was up first, but he announced that he wanted to give his time to two other men that he had brought along. He introduced two young men, who held hands and spoke about how they and other gay men frequently thought about suicide because they were continually harassed, particularly when being together in Washington Park. I sat there thinking, “I am missing lunch for this crap?”

The officer was up next, and to my dismay, he gave practically the same talk that I had been planning. (I later learned that he had attended, but not graduated from Albany Law School, and learned the same history of suicide from Dean Clements, who taught criminal law to first-year students.)

Suddenly, it was my turn, and I had no idea what to talk about when I was introduced. I decided to talk about a young man whose prosecution I had been handling in Troy Police Court. He was on suicide watch at the Rensselaer County Jail. He originally was arrested for setting fire to some street trash. A psychiatric examination was requested by his assigned counsel, Thomas O’Connor, Sr., and Judge Fogarty reported that Dr. Morgenstern, the director of the county’s Mental Health Board had found him to be “sound as a dollar”. He was released on bail but was soon rearrested while walking nude up the center of Hutton Street, telling the arresting police that God had instructed him to show people what a real man looked like. After this arrest, a formal two-physician examination was ordered. The result was as follows:



I then spoke about how the legal profession viewed (at least in my view) psychiatrists. I said that lawyers had little regard for psychiatrists as witnesses as they would usually find whatever results were needed by the employing attorneys. As an example, I mentioned the case of a fourteen-year-old boy charged with juvenile delinquency who I represented as his law guardian in Family Court a couple of years previously. The boy admitted to shooting his father in the head with the father’s handgun, and the issue was what the disposition should be. The County Attorney (which prosecutes juveniles in Family Court) produced a psychiatrist who testified that the boy was dangerous and should be confined. I produced a psychiatrist who testified that the only person ever in danger by the boy was his father, and since his father was dead, there was no medical reason to confine him. [The boy was placed in the custody of his paternal grandmother.] I went on to mention that our County’s Mental Health Director was routinely referred to as “Dr. Foreskin” by Judge Fogarty as well as many defense counsel and prosecutors who routinely practiced in Troy Police Court. That statement brought murmurs from the audience.

Later that afternoon Tess telephoned and asked me to come over to the District Attorney’s office. When I got there she told me that Gus was getting repeated calls from Dr. Morgenstern, who had received reports about what I had said from some of his staff who had attended the convocation. Gus was still in court, and Tess was worried about what to tell him. When Gus came in and I told him what happened, he laughed and said that he would “calm Foreskin down.”

A short time later I was drafted by the incoming Republican-dominated County Legislature to be County Attorney. As such, I became the attorney for all county officers, including Gus and Dr. Morgenstern. Gus went on to become Rensselaer County Judge, New York Supreme Court Justice, and United States District Court Judge. Dr. Morgenstern retired to Palm Springs in the 1980s.

(Very) Early Morning Court in Troy

One cold February night in 1975, John D., Esq., an Albany Law School alumni, got word that his two brothers had been arrested by officers of the Troy Police Department for driving while intoxicated, public intoxication, public lewdness, and a violation of Troy’s open container law. Like any good attorney and brother would do, he arranged for his brothers to be arraigned in the basement of the home of Supreme Court Justice William R. Murray’s at 4:00 A.M. One brother pleaded guilty to a charge of reckless driving, and the other brother pleaded guilty to public intoxication. Justice Murray imposed a fine in both cases but immediately suspended the sentences. 

Justice Murray filed the record of the proceeding as an order of the Supreme Court in April, and the District Attorney appealed the order to the Appellate Division. That appeal brought the issue of the jurisdiction of the Supreme Court into sharp focus: Could a Supreme Court Justice preside over misdemeanor cases as if he were a local criminal court judge?

In its precedent-setting ruling, subsequently cited by the Court of Appeals, the Appellate Division answered in the affirmative but stated: “Finally, while we have upheld jurisdiction in this case, we do not condone the manner in which this case was handled."

Infant Settlements

A competent adult can settle a lawsuit with a signature, but the rules are different for a child. Under the New York civil procedure, court approval is necessary for the settlement of the claim of an infant, a person under the age of eighteen years. Most negligence claims arise from automobile accidents, fall downs, or dog bites, and a substantial number of those claims are the claims of injured children.

When an adult’s claim is settled, the claimant’s attorney draws a general release, which specifies the party being released, the amount being paid for the settlement and release, and a brief account of the nature of the claim. If the infant is the claimant, however, the fairness of the claim must be reviewed by a judge. A judge of the court in which a lawsuit is pending reviews the application. If the settlement was arrived at prior to the commencement of a lawsuit, the application could be made to any judge of a court that would have both territorial jurisdiction of a lawsuit brought on the child’s behalf, and monetary jurisdiction for the amount of the settlement.

An application for an “infant settlement” is prepared by the child’s attorney. It includes a petition by the child’s parent or legal guardian setting for the nature of the child’s injury and claim, expenses incurred, and reasons why the petitioner thought that the best interests of the child would be promoted by a settlement. An affidavit by the petitioner's attorney addresses the legal issues (usually suggesting that the child might either lose at trial or not recover more than offered in settlement). Also attached are pertinent medical records, police accident reports, and an affidavit from the child’s attending physician setting for a brief statement of the treatment and prognosis. These papers are then topped by a proposed order to be signed by the judge approving the settlement and terminating the child’s future rights to sue. An appointment would be made with the judge, and at the appointed time the child, his parents or legal guardians, and their attorney would appear before the judge in his chambers to discuss the settlement, and once satisfied, the judge would sign the order. The order would provide the amount of attorney’s fees, and if the settlement was substantial, it would direct that the net recovery be put in a special bank account to be withdrawn when the child reached his majority. Earlier partial withdrawals were permitted for good cause shown by petition.

Different judges took vastly different approaches to their review of infant settlements. At one end of the spectrum was Troy City Court Judge Matthew M. Dunne. Judge Dunne was a part-time civil court judge who maintained a private law practice on Second Street, specializing in wills and estates. He was a true gentleman. Attorneys loved to bring infant settlements before him. Although he usually knew nothing of the proposed settlement prior to meeting with the attorney and his clients, he would skim the pages and announce that the proposed settlement was among the finest he had ever seen. He praised the lawyer and wondered out loud how the lawyer was able to get such a large settlement, or a settlement at all, in view of the facts of the claim. The child’s parents would beam, as Judge Dunne suggested that they must be very clever to have hired such a fine lawyer. With a flourish, he would sign the settlement order.

The other extreme was DeForest C. Pitt. Judge Pitt was from the small village of Hoosick Falls. He was very politically connected, and had been County Attorney and then County Court Judge. The rumored mistress of a Republican political leader was his appointed confidential secretary. He was eventually elected to the Supreme Court, a trial court that handled mostly civil cases. Since Judge Pitt was the resident Supreme Court judge, infant settlements in cases that were pending in that court frequently came before him, as did other proposed settlements in which the monetary amount exceeded the Troy City Court’s jurisdiction. To the extent that Judge Dunne made an attorney look brilliant, Judge Pitt made attorneys appear wholly incompetent. In the presence of the infant and parents, he read every word of the documents. Like a proofreader, he corrected grammar, added or deleted sentences, and marked up the documents with relish. Once I saw him change an affidavit that had been signed by a physician! He questioned the infant and parents, and frequently broadly hinted that although he was approving the settlement, he thought the amount low. Sometimes he would get on the telephone and call the insurance adjuster who had made the settlement offer and try to increase the offer. That ploy sometimes resulted in a modest increase in the settlement, since it was difficult for most insurance company adjusters to refuse a Supreme Court judge who started the discussion stating that he was about to reject the settlement unless the amount was increased. The obvious result was that the infant’s parents left the proceeding believing that their attorney was incompetent and thankful that Judge Pitt had become their advocate and was so willing to correct all of their attorney’s mistakes, which were so obvious to him.

While annoying, it was not really too much of a problem to wind up with an infant settlement order that was marked up, because the client did not typically get a copy of the order to take home. The original order was filed in the County Clerk’s office, and a conformed or photocopy of the order was sent to the insurance company or the other party’s attorney who was paying the settlement, and they were used to receiving Judge Pitt’s marked up orders. It was another matter when Judge Pitt signed a judgment of divorce or annulment, however. A judgment in a matrimonial action was the end product that a client took with him or her, and attorneys wanted that to look perfect (even if the terms were not always what the client had hoped for). A matrimonial judgment was not signed in the presence of the client. After the matrimonial hearing, the prevailing attorney would purchase a transcript of the testimony and the judge’s oral decision, and prepare a written Finding of Facts and Conclusions of Law and a separate Judgment for the judge’s signature, which was delivered to his chambers to be reviewed by the judge’s law clerk and then submitted to the judge for his review and signature. Judge Pitt would mark up the proposed judgments as he did with infant settlement orders. Like many other attorneys, I did not want my clients to receive a messy document, so I would have my secretary retype the order, incorporating all of Judge Pitt’s modifications, and resubmit it to his chambers with the originally signed judgment. This was prior to the common use of even rudimentary word processing equipment, so the judgment would have to be retyped from scratch, but the result, a clean document, was worth the extra effort. I always studied the changes that Judge Pitt made to my matrimonial judgments, and incorporated such changes in future documents that I submitted to him. One day his law clerk, Paul V. Morgan, Esq., brought out a judgment of divorce signed by Judge Pitt that had not a single mark on it. Paul was beaming and told me that it was a first. I was confident that I now had the exact language that Judge Pitt wanted, and a few days later submitted the judgment in a similar divorce case that mirrored the prior, unblemished judgment in every possible way. It came back to me marked up with a whole new set of changes added by Judge Pitt in his bright, blue ink.

Litigation

It is not infrequent that an attorney’s clients consult regarding some wrong they have suffered as the result of a commercial transaction that did not meet their expectations. After listening to the client’s story of the history of the transaction and reviewing the documents the client provides, an attorney will usually try to resolve the matter by a telephone discussion with the other party, or a letter to that party requesting a resolution of the issue. If a satisfactory resolution is effected in this manner, the cost to the client is minimal, and frequently the attorney will not even bill the client for the modest effort involved.
Sometimes, however, the telephone call or letter approach fails, leaving litigation as the only recourse open to the client. Litigation is always time-consuming and expensive. If the monetary amount of the loss the client has sustained is not great, I would frequently suggest that clients represent themselves by bringing a lawsuit in a local small claims court which usually has jurisdiction for claims that do not exceed $5,000 or so. In those small claims courts, the claims are simply stated in the claimant’s own words on pre-printed forms, and the filing fee is nominal. Neither party is usually represented by counsel, and the judge listens to both sides and renders a quick decision, not too much unlike the “Judge Judy” television show.

Small claims courts do not work out for all clients in many situations for a variety of reasons. Some people just do not feel comfortable going before a judge by themselves, or feel that the issue is too complicated for them to explain. In any discussion with a client regarding the practicality of employing the attorney to commence a lawsuit to press their claim, the attorney is usually quick to advise the client that even if the client prevails and gets the money judgment the client is entitled to, they may still suffer a loss because in most cases the court cannot award attorney’s fees as part of the judgment. Some contracts stipulate that the prevailing party can recover reasonable attorney’s fees, but that is a double edge sword, because if the client does not win, he may also have to pay the other party’s attorney’s fees.

In my practice, I always tried to discourage clients from employing me to represent them to sue on modest claims, even though they sometimes said that the cost be damned, they wanted to sue on principal. In the latter years of my practice, I used this personal example of how involved and expensive pursuing a modest claim in court be.

Soon after building a new home in the early 1990s, my wife and I employed an interior decorator, Richard Seiden, to help us with furnishing the home. Richard did an excellent job and took us to a design center in Manhattan where we purchased much of our new furniture, including a large, curved sectional sofa for our living room, which was elliptical in shape. Our home had oak floors, but Richard suggested that we use area rugs in some places. The first area rug needed was a 8 x 8 square rug for our breakfast area. Richard sent us to David Cohen’s Lektro-Kleen, Inc., a commercial rug cleaner and fabricator who had been in business for many years in Albany. Richard helped us choose the rug materials, and Mr. Cohen’s company fabricated the rug promptly and for a reasonable price. We were very satisfied.

After our living room furniture arrived, Richard offered to design an area rug that would visually tie the furniture together. The rug was designed to follow the elliptical shape of the room and the contour of the curved sectional sofa. The rug was to be fabricated in purple with a black border. We showed the design to Mr. Cohen, and after he came to our home to view the job, he told us that he could make the rug Richard had designed, and made notes and sketches. We purchased the materials through Richard at a cost of $1,996.42 and employed Mr. Cohen’s company to fabricate it for an agreed price of $1,400.00.

During May 1994, two workmen came to the house to make a template of the rug. They did not have Mr. Cohen’s notes or sketches. They used a rope to outline the rug area, then moved the furniture and made a large paper template. The workmen did not place the furniture on the template to check it. A few weeks later the workmen brought the finished rug, but after the furniture was placed on it, it became clear to us that the curve of the rug did not match the curve of the sofa, and the workmen brought the rug back to their shop. After that, it became difficult to communicate with Mr. Cohen, and Richard became the intermediary. A meeting was arranged at our home, and although the workmen brought the rug back for the meeting, Mr. Cohen didn’t show up, although he had told Richard that we would personally come to inspect the problem. Richard showed the workmen the problem, and after they agreed that they could not move the furniture to match the curve of the rug, they made a new template with the furniture in place. The employees agreed with Richard that the template should have been made in this manner initially.

Everything went downhill from that point. Mr. Cohen wouldn’t return my telephone calls and told Richard that he wanted us to buy more materials to piece on the rug, a very unsatisfactory solution. In addition, he wanted to be paid before doing anything further. After he stopped taking Richard’s calls and didn’t respond to my letters, by November 1994, I decided that litigation was the only resolution.

Even though our claim was well within the monetary limits of small claims courts, I preferred to sue Mr. Cohen’s company in the Supreme Court. Had I elected to sue in the small claims section of Albany City Court, which had jurisdiction because the business was located in Albany, I knew that I could lose a morning waiting to be heard because of the crowded calendar, and law permitted me to sue instead in Rensselaer County, where we lived, and which was convenient for me. I thought that when he received the summons and complaint, Mr. Cohen would come to his senses and try to resolve the matter instead of incurring the cost of employing a lawyer to defend the case. What I didn’t know was that his daughter, Elise Hiller, had recently been admitted to the New York bar and was employed at Albany Law School.

Ms. Hiller answered the complaint, denying that the rug’s construction was faulty, and counterclaiming for the labor of fabricating the rug and for storage fees for storing the rug at the shop. There were no negotiations, and the litigation proceeded. I placed the case on the court calendar for trial, but because the amounts in contention were less than $10,000, the rules required that we submit to arbitration. We spent the better part of a day before the arbitrator, a young female attorney assigned by the court to hear our case. My wife and I testified, as did Richard on our behalf. Mr. Cohen and his workmen testified on the defendant’s behalf. At the conclusion, the arbitrator directed that Mr. Cohen remake the rug, but did not make any monetary award to either party. I asked the arbitrator how I could enforce her decision if the remade rug was not satisfactory, and she replied that she knew of no way of enforcing it. Once again, I put the case on the Supreme Court calendar for trial. This time a conference was held before Judge George Ceresia, which was not productive. Judge Ceresia assigned the case to be heard by M. Andrew Dwyer, a retired Rensselaer County Judge.

Photo taken during Court Observation

The trial in Rensselaer County Supreme Court was a more formal replay of the arbitration. I testified by asking myself questions and answering them and acted as attorney for the plaintiffs in questioning the other witnesses. Ms. Hiller elicited the testimony of her father and his workmen. At the conclusion of the testimony, Judge Dwyer said that he was unable to reach a decision without seeing the rug and furniture, and adjourned the case to a future date at our home. Judge Dwyer, together with a court clerk and stenographer, came to the house. Mr. Cohen and his workmen brought the rug back and put the furniture on it, adjusting it as best as they could to match the curves. After inspecting the rug, Judge Dwyer announced that he required further testimony and set a date to reconvene in court. At that time, Judge Dwyer asked a few innocuous questions and then announced his decision finding in our favor and against the defendant. Based on a transcript of Judge Dwyer’s decision, I entered a judgment against Mr. Cohen’s company for $3,479.98, which included our original $1,996.42 for materials, interest, statutory costs, and out-of-pocket litigation expenses. I then sent a restraining order to his bank to freeze that amount, and an execution to the Albany County Sheriff to pick up the money. I thought (hoped) that would be the end of the saga, but it was not to be.

Ms. Hiller promptly filed an appeal of the judgment to the five-judge Appellate Division of the Supreme Court and made a motion to stay the collection of the judgment pending the decision on the appeal. The court granted the stay on the condition that her client deposits the full amount of the judgment with the court clerk. Although court rules require that an appeal be perfected by filing a record on appeal, consisting of all court documents and a transcript of testimony, together with the appellant’s brief (written legal argument showing why the trial court’s decision was an error), be filed within 60 days, Ms. Hiller repeatedly requested extensions of time until she was given a final deadline by the appellate court. She finally filed the required documents including a brief citing numerous cases to support her contention of error, and a date for oral argument was set. By this time I was so disgusted with the time that this case had taken, I submitted a reply brief of a cover sheet and one page that basically said that the cases cited by Ms. Hiller were irrelevant. I notified the clerk that I wasn’t going to attend the oral argument.

A few days later the appellate court issued a one-sentence decision denying the appeal. Since the decision was unanimous, there could be no further appeal and I collected the judgment money from the court clerk.

Litigation, Part II

         In 2002, Tomhannock, LLC, a limited liability company I owned with a partner, entered into a contract to sell a 15+ acre parcel near the Tomhannock Reservoir in Pittstown, New York, to DiLallo.  This had been approved by the planning board for a single-family residence, as had an adjacent 15+ acre parcel.  Tomhannock had initially wanted to carve out a 3.5-acre parcel from the front of both parcels and had them surveyed, but did not get approval. The purchase price was to be $105,000, but DiLallo only wanted to put down $50,000, so we fashioned a deal by way of an option agreement, which provided that if DiLallo failed to pay the balance of $55,000 within 10 years, he would convey the 3.5-acre parcel back to Tomhannock.  A similar arrangement was made with the purchaser of the adjacent parcel, who soon paid off the balance and we released the option on that parcel.

       DiLallo decided not to build and sold his parcel to LaPorte.  During early 2011, prior to the expiration of the 10-year period, Tomhannock, having not received the balance of $55,000, demanded that LaPorte execute a “reconveyance deed” of the 3.5 acres back to Tomhannock as provided in the option agreement.  Instead, while I was negotiating the matter with LaPorte’s attorney, LaPorte sold the parcel to Roundabout Resources, LLC, a New Mexico limited liability company having its official address in the Canary Islands, Spain during July. The deed to Roundabout Resources showed its address as being in Fairbanks, Alaska.  I wrote to that address and received a letter back stating that Roundabout Resources was not obligated to execute a reconveyance deed because its subdivision had not received planning board approval.  I then did some research and learned that the Alaska address was merely a paid mail drop, obviously intended to mislead Tomhannock as to its true owner and location.  I found that it was owned by Kyle Litz, a resident of nearby Saratoga County who is a chemist with a Ph.D.

       As I was then living in Florida, I worked with my Troy attorney, Thomas Spain, and commenced an action in New York Supreme Court to compel the execution and delivery of the reconveyance deed.  That was in 2012.  Mr. Litz retained a local law firm to defend the lawsuit. There were no settlement discussions since Tomhannock’s position was that Roustabout Resources had to honor the terms of the option agreement (binding upon all of the subsequent owners) or pay the $55,000, and Roustabout stood firm in its position that it was not required to do anything absent planning board approval.

       During the course of the litigation, the case came on before a trial court judge on three different occasions, each time ruling in favor of Tomhannock. Roustabout Resources appealed two of the rulings to the five-judge Appellate Division, which affirmed the trial court’s decisions.  Finally, Roustabout Resources twice appealed to the seven-judge Court of Appeals, the court of last resort in New York, which on June 4, 2019, unanimously affirmed all of the lower court decisions, and required the delivery of the reconveyance deed, together with statutory costs to Tomhannock.

       Litigation of this type, with three proceedings before a trial-level Supreme Court judge, two appeals to the Appellate Division, and two appeals to the Court of Appeals, is both unusual and costly.  Roustabout Resources’ expenses must have significantly exceeded the $55,000 it could have paid to retain the 3.5-acre parcel because it not only used an expensive law firm, but it had to pay for printing the extensive records of all of the prior proceedings for each court appeal, the filing fees, and ultimately Tomhannock’s statutory fees as the prevailing party.  Also, during the almost seven years of litigation, Roustabout Resources could not sell its parcel because the litigation rendered it effectively unsaleable.  During that period, the value of rural land in this area of Rensselaer County tanked as rising property taxes and development costs make the sale of it for anything other than a fraction of its original value unlikely.

       I then owned the 3.5+ acre parcel and I offered to donate it to a conservation not-for-profit organization in Rensselaer County, but the donation was refused on the basis that it was too small.  Instead, I sold it to an adjoining landowner.   From my perspective, the litigation was a matter of principle that I could afford to fund, and I never doubted that Tomhannock would prevail. I remain amazed that Mr. Litz’s attorneys or Mr. Litz apparently did not truly understand the controlling legal issues.

       When the litigation was over, Mr. Litz telephoned me, and we discussed the case.  He was surprised that I was able to get the reconveyance deed recorded without municipal approval, and he told me that although he purchased the property with the intention of building his forever home, his plan now is to retire to his native Texas.

File Revised January 17, 2022