Chapter 21
It was December 7, the day that Cy O’Malley’s case was to be argued in the Court of Appeals. Larry walked from his hotel, which was located across from the Capitol, to the Court of Appeals Hall on Eagle Street. Glancing across at the Capitol building, he wondered how many times Bemrose, as a kid, must have looked up those steep stone steps and thought of walking in someday to see the Governor or the Legislature on official business. Larry detoured into the park and stopped before a stern bronze statue of Philip Schuyler. The formidable likeness might have frightened a small boy who was standing in the snow all day Saturdays to drum up shoeshines.
The Courthouse itself was a hundred years old, according to the cornerstone dated 1842, and was fronted by six weathered Greek columns.
Larry remembered the first time he came up to hear an argument when he was just out of law school and the Court had seemed remote and sacred. He always meant to have a look around the historic building. This morning ought to be a good time. He would have to wait anyway until the clerk asked the Chief Judge if Arthur might deliver his argument seated.
A girl at the information desk inside the bronze entrance doors told Larry the clerk wouldn’t be available for fifteen or twenty minutes. Larry walked into the rotunda with its gold Star of David in the floor, and looked up past overhanging balconies to the white frosted dome. Shut into the circular space by eight massive columns, he had a moment’s claustrophobia. The sensation eased as he emerged into the high arched ceilings of the entrance hall. Near the telephone booth, a painting of David Dudley Field, his hand thrust into a Prince Albert coat, was flanked by Florentine chairs embossed with the New York State shield.
Larry wandered into the library and glanced at a copy of the Law Journal on a table neatly blottered in green. He took down a volume of Hopkins Chancery Reports in the tan binding with red title panel, and leafed through it aimlessly.
From a corner of the room glared a marble bust of Ambrose Spencer, former Mayor of Albany. Larry wondered if Spencer were responsible for cobblestoning the steep inclines of Albany, a city that had ice on the streets five months a year. The ground now was lightly covered with snow, and green patches of grass showed restfully through the white cover. Larry had realized on the trip up, riding along the Hudson, how building-weary his eyes must have become the past months, and how much he needed this chance away from New York to look at water, sky and earth.
He stepped across to the lawyers’ waiting-room with its oversized leather chairs and picked up a copy of the daily calendar. The O’Malley case was second on the list. That ought to give Bemrose plenty of chance to finish his argument this afternoon. A timetable lay beside the calendar. If they were out by six o’clock, and Arthur decided not to stay over with his family, they could have dinner, catch an evening train, and be back in New York tonight.
Larry walked through the hall to Room 119, and reverently opened the door. He seldom walked into the courtroom without feeling as if he were blaspheming. Oil portraits of former judges circled the room in two rows, the full-length figures above and head-and-shoulder portraits below, framed by carved golden oak panels.
Larry remembered sitting as a spectator behind a rail in the back of the high-ceilinged room, intimidated by the giant fireplace of yellow marble, sunk in the left wall, with its giant claw-footed andirons of bronze. Intricate baskets of carved golden oak above the fireplace symbolized another generation’s concept of rich decoration. The sheer, stupendous hand labor involved in carving every oak wall panel, fashioning a rosette in the arm of every oak chair, decorating the legs and stretchers of the seven counsel tables, whittling gargoyles and cathedral doors of golden oak into each panel of the semi-circular bench at which the judges sat, and hewing from raw wood the elaborate fifteen foot cabinet of the grandfather’s clock which told the day of the week and month as well as the time, this human effort of fashioning, designing, perfecting, molding, and veneering the walls, ceilings, and furnishings of a space fifty feet wide by one hundred feet long overwhelmed Larry. In the chill December light that speared through three towering windows on the right, the artifice of the woodcarvers whose strong fingers must have grown knotted and stained in this work seemed an obsolete craft. It had little affinity with the contemporary feeling about wood, the desire to bring out and emphasize the simple, natural beauty of the grain. This older art treated wood like filigree, working it into forms that might more delicately have been executed in platinum, and hiding its character under shiny layers of varnish. A modern designer like Elizabeth Brett would call it unfunctional, Larry knew. As if to prove the truth of this modern view, he saw that the fireplace had never been used, the clock had stopped, and the weighty bronze crowns, suspended by chains from the ceiling, obstructed the light from the electric globes they decorated.
Observing the same lack of forthrightness in some of the portraits, Larry studied a full figure of Judge Haynes. The artist had made him pink-and-white pretty with an unlined face. Larry found in it little resemblance to the austerely lived-in countenance he remembered. The stocks, the whiskers, and the colored flowing robes of some of the older judges mellowed their portraits, as did the tarnished nameplates below, but the empty emotion of the more recent paintings showed as raw as their color in the winter morning light.
There was a commercial calendar next to the silent clock, a chromium-trimmed lamp on the desk of the case clerk, and a functional water cooler near the window, showing that the room couldn’t get along without the modern. Ample radiator boxes at the windows, working wall thermometers and metal ventilators also indicated that no expense had been spared to circulate fresh air among members of the Court.
Larry walked to the counsel table a few feet in front of the bench where Arthur would present his argument. A lawyer speaking from behind the lectern stood at eye level with the Judges. It was a pleasantly informal arrangement, and today Larry felt particularly grateful for this closeness between Court and counsel. Although Bemrose would be arguing seated from behind the table, the Judges should have no trouble seeing or hearing him. Larry decided he would sit at Arthur’s left where he could hand him papers and reference volumes with ease.
The case clerk greeted Larry by name. He had been with the Court for more than twenty-five years and was as much a part of the scene as the marble based statue of Robert Livingston inside the entrance.
“This room used to be in the State Capitol,” he volunteered. “They moved it over here piece by piece. All the panels are hand carved.”
“It’s impressive,” Larry agreed. “Where good lawyers dream of coming when they die.”
Larry told him about Arthur having to argue seated, and the clerk promised to take it up with Judge Lehman. He came back in a few minutes to say that Judge Lehman had been happy to grant Mr. Bemrose’s request.
“How is his health?” the clerk inquired. “I heard——”
“His legs aren’t steady, but that’s the only thing about him that isn’t a hundred percent.” Larry fastidiously pulled his pocket handkerchief out a quarter of an inch. He had on a new blue herringbone. Arthur’s tailor had made it for him from a pre-War length of English woolen. The suit fitted him right. He felt sure enough of himself to be arguing a case of his own today. “This will be the first time he’s been in court since the Army,” Larry explained.
“You mean the first time since his troubles?” The clerk ran a hand along his legs.
Larry nodded.
“It must be pretty important,” the clerk said. “Not the case. But important for him. I remember the first time I saw him. Fresh out of law school and smart as paint. Judge Haynes was crazy about him.”
“Today’s important, all right,” Larry agreed. “You’ll see. He’ll come through okay.”
“I remember the time he was up here on that insurance case. He made a beautiful argument. When you listen to Mr. Bemrose, you always forget about oratory. Not like with some of the big ones who carry you away. You get interested in what he’s saying, and don’t want to miss a word.”
“He’ll show some of them who’ve been going around saying he’s finished—” He will if his speech doesn’t throw him, Larry thought. “The Old Man will pull him through,” he added, pointing to Judge Haynes’s portrait.
“Today’s a big day,” the clerk said. “Judge Erving has a case on the calendar, and so has A. Atherton Clark. And I hear the Attorney-General is up from Washington.”
“Tom Newton?”
“He’s interested in the case of that German—” the clerk explained.
With that kind of audience today was going to be a real test for Bemrose.
“Einstein dropped in yesterday and may come back this afternoon. He’s been visiting Judge Lehman.”
“You mean Albert Einstein?” Larry asked.
The clerk nodded.
“Quite a gallery for Mr. Bemrose.” Larry picked up his coat from a chair and took another look around. “Well, he can’t complain. He has the right setting.”
The yellow window shades hung unevenly. Their disorderly cords supplied the only note of rakishness in the oaken formality.
Outside Larry shook hands with the clerk, and the rotunda seemed open and friendly.
A. Atherton Clark’s argument lasted until four o’clock. Tom Newton, who had come up specially for it, made no attempt to leave when it was finished, and Larry wondered if he were waiting over specially to see Arthur.
Bemrose entered the courtroom during the last fifteen minutes of Clark’s argument. He had trouble manipulating his crutches through the back gate, and as he swung down the center aisle over the faded gold carpet, Newton, who was seated at one of the counsel tables in back, started to reach out as if to steady him. Old Ambrose Dane nervously rubbed the top of his nose until Bemrose was seated, and Larry saw two or three other lawyers follow every step he made.
Arthur’s case was called, and Chief Judge Lehman moved the box of his hearing aid forward. Lawyers arguing before the Court superstitiously watched the black box, believing that if it were switched off, an argument was lost.
Judge Lehman gave Bemrose his attention, and smiling, said, “This is the first occasion on which the Court will hear an argument by a member of the bar back from the service. We welcome you on your return.”
The remark was in keeping with the Court’s tradition for courtesy.
Arthur laid aside his papers to thank the Judge and was directed to proceed.
Quietly he reported the facts of the old condemnation case and the award to the O’Malleys. He reviewed the City’s successful move to reopen the matter after fifteen years. His voice ran smooth and confidently, as if he had been in court every day for six months. Reassured and able to relax, Larry scanned the row of chairs behind the back railing for Cy O’Malley. Cy’s face was dough white, and he pulled at the blond strand of hair that fell over his eye.
Judge Lehman’s voice interrupted the smooth cadence of Arthur’s phrases, and Larry abruptly turned around. The first hurdle. Every case argued here was two-way. The Court questioned sharply. No lawyer was allowed to present his appeal precisely as it had been planned.
“Mr. Bemrose, have you considered the rule that limits us to questions of law?” Judge Lehman incisively asked. “You know, of course, that orders granting new trials are usually in the discretion of the Supreme Court. We do not ordinarily decide such questions.”
Larry waited confidently, knowing that Arthur had foreseen this objection.
“There is a well-recognized exception in cases where the error the new trial has been granted to correct is an error of law,” he pointed out. “I shall attempt to demonstrate that the decision below was based on the power of the Court to grant a new trial, a question of law.”
Judge Lehman nodded. “You may attempt to satisfy the Court on that issue.”
Three of the Judges moved forward attentively in their chairs. A fourth poured a spoonful of medicine, swallowed it, and killed the taste with a square of chocolate he kept in his drawer.
In preparation for this appeal Bemrose had studied original historic sources—the old City Charter, the ancient proceedings of the Land Office commissioners, and long-forgotten cases on the construction of water grants. In a few weeks he had made himself an expert on commerce and navigation history in the State and knew by heart the reports that the commissioners had made to the legislature in 1811, the old diaries and letters of barge captains as well as the more recent technical reports by waterway engineers. Steeped in the history of the State’s canals, waterways, and harbors, Arthur had concluded that the clause providing for recapture by the State of Cy’s waterfront property meant something quite different from what it said. The State, or its agent, the City, did have the right to recapture such property for the price originally paid the owner. But only if such property were used by the State for navigation and commerce. That was the implied principle which he now brought to the attention of the Court. That was what the elder statesmen who had drawn the old City Charter clearly stated and what the land commissioners had relied upon for their authority when they drew the clause used in the O’Malley grant, he explained.
Bemrose clarified for the Judges the reasoning behind this principle. Before railroads and concrete highways had been developed, the plodding canal boat was the only reliable carrier of goods and produce between the Atlantic seaboard and the West. The Erie Canal, opened in 1825, not only peopled the Middle West, but made New York City, which was then a second- or third-rate port, the leading harbor of the world. The Canal provided the only highway between the Atlantic and the Great Lakes that did not necessitate crossing mountains. Commerce, life blood of the new nation, depended on navigation, and the lawmakers had recognized this, Bemrose pointed out.
He explained to the Court that as early as 1769, Benjamin Franklin, recognizing that the Canal was a more efficient carrier of freight than any road then existing, urged more canal building, and George Washington carried on the fight. Early decisions of the Federal Supreme Court gave the public interest in commerce and navigation precedence over the old and respected principle of eminent domain. The only time the State could take property without just compensation and the only time that waterfront owners could be deprived of their property rights was in order to promote commerce and navigation, Bemrose emphasized. This had been decided early in the country’s history, and draftsmen of the old City Charter, steeped in that thinking, had limited the recapture of waterfront land to property that was necessary for navigation and commerce. The State could destroy riparian rights without compensation only on one condition, Bemrose maintained, and only when the recapture of the land benefited navigation and commerce.
Citing historic sources and documenting his argument with early law, Bemrose made this point again and again.
Judge Lehman rubbed his palm along the smooth surface of the table and said, “Having inserted the recapture clause in the O’Malley grant according to the provision of the Old Charter, the language of the grant will be limited to the purpose in the Charter even though that language is not repeated in the grant. Is that your point, Mr. Bemrose?”
The Court understood. Arthur had clarified with exceptional lucidity the complex issue. There would be no misstatement or confusion as to his premise.
“That is my point, your Honor.” Satisfied, he settled behind his mustache. “Since the condemnation was for a street improvement and not for a harbor or waterway, it was not a taking for commerce and navigation.” It was his clinching argument, and he paused. “The clause in the O’Malley grant could not, as a matter of law, have been applied to cut down the award to my client.”
Judge Lehman nodded. His hearing box remained before him undisturbed while the lawyer for the other side, agitated, hurried through the pages of his brief.
Larry turned around and saw Cy O’Malley nudge his neighbor.
At the end of the row reserved for visitors in back Larry spotted Janice Baldwin. She sat forward tensely, her gloved hands clasping the railing. Larry tried to stare her into awareness across the vast room, but her solemn wide eyes were riveted on Bemrose. With the brown fur of her coat gathered around her shoulders, she blended into the oak of the room, another fine ornament in the expanse of golden carving.
Suddenly Judge Lehman’s voice, questioning Arthur, acquired a new, hard tone: “... how the question was not argued in the old case?” Larry had missed the beginning, but it was obvious that Judge Lehman suspected that the old case might have been dishonestly tried. In the days when Cy’s father had received the award, Tammany was corrupt. Maybe the O’Malleys’ lawyer had made a deal with the unscrupulous City lawyers to forget the recapture clause.
“Why didn’t anyone argue the point?” Judge Lehman demanded. “From what you’ve said so far, it evidently takes considerable arguing. If your point is well taken, which of course is undecided——”
The tic started in Arthur’s lip. Larry knew that unless he could explain why the point had not previously been argued the Court would affirm without opinion, reasoning that a new trial might be a good thing if the old one had been fixed.
“If the Court please, I cannot speak from personal knowledge,” Bemrose’s voice flowed on unobstructed. “When this case was tried, I was not a member of the bar. Our trial counsel and opposing counsel in the old case are both dead. My client was a child, and his father, who received the award, died ten years ago.” His clear, assured tone denied the hopelessness of what he was saying.
“When this case was tried, the law consisted in what the lower court had decided in the Upper New York Bay case,” he pointed out. “In that case the recapture clause was declared null and void regardless of the purpose of taking. The reasons are given on page thirty-four of my brief. Both sides in this case apparently had agreed that the recapture clause was worthless, and saw no point in arguing it. Have I—” Arthur’s speech played the old trick, and a quiet rocked the room. “Have I answered your Honor’s question?” he continued confidently.
“You have at least been logical.” Judge Lehman smiled.
He had saved his case. From the back row Cy wordlessly cheered. Old Ambrose Dane shelfed his lower lip in approval, and whispered to Tom Newton behind his hand.
“If I were standing—” Bemrose gestured expressively. “I must ask your Honor to recognize the Respondent’s counsel.” The Judges stirred amiably in their chairs.
Larry asked Bemrose to excuse him as the Assistant Corporation Counsel set about to refute the appeal. Hurrying to the back of the room, he slipped into an empty chair next to Janice.
The blue puffs showed under her eyes. She had been crying. Larry took her hand in wordless comfort.
“It went fine,” he reassured her. “He got over the two big hurdles. I think they’ll reverse.”
The tears started again, and her hand shook in his.
“He proved that he can do it,” Larry said.
She sobbed out loud, and the man next to her looked around.
“You saw him come in?”
She nodded dumbly.
“It looks worse than it is,” Larry said. “He gets around all right. You’ll see. Wait for us outside.”
She motioned Larry to follow her out of the courtroom and in the waiting room explained to him that she couldn’t stay until Arthur was through. She was making the five o’clock train back to the city. She had to get to Washington that night, and had a plane reservation from New York at nine.
“But he’ll want to see you, Janice. When I tell him you were here——”
She held up the stiff, sharp hands.
“He’ll be so happy you were.”
Her smooth dark head fell forward over the thick arm of the chair, and she pressed her eyes into the leather. Larry put his arm around her shoulder. “I hate to see you go back alone.”
She bravely rearranged her features.
“He’ll be wondering what has happened to you,” Janice said. “You’d better go back in there.”
“You’re sure you don’t want him to know?” Larry smoothed the dark straight strands of hair along her cheek.
Janice shook her head. “I’ll be in New York next week. I’ll call you.”
Larry followed her through the marble rotunda to the door. She looked small and lost among the massive columns.
“How did you know about today?” he asked.
“Tom Newton. I met him on the train coming up from Washington.” She reached up and clung to Larry’s lapels. “I was a fool to make the trip. I should have known when you told me not to come to New York——”
He kissed her. “He’ll feel fine if the Court decides for him. It’s going to set him up. Today isn’t a bad day to hang around——”
Miserably she shook her head, and her eyes were soft and damp. Larry figured she wasn’t crying for the wounded she may have left behind her in China, but for her own private casualty here at home.
During the remainder of the Corporation Counsel’s argument, Larry sat in the back of the courtroom with Cy O’Malley. Cy’s baby face had lost its roundness, and his blue eyes were mute, as the City’s small, blond lawyer, whose irregular features looked as if they had been torn out of paper, replied to Bemrose’s argument. The lawyer’s response lacked conviction. The more he argued, the more cumbersome and unnecessary it seemed to rouse the gray-bearded O’Malley judgment from its fifteen year slumber. It appeared impractical to indulge the City in its “second guess,” as Bemrose had called it, and reopen litigation that long had been considered final. Apparently Arthur felt no threat in his opponent’s argument. When the other lawyer finished, Arthur waived a reply, although it was only ten minutes of six, and the Court did not adjourn until six o’clock. Confident that the Judges had grasped his point, he shrewdly decided to rest the case. Larry saw Cy’s relief when it was over and they went up front to help Arthur collect his papers.
“Nice going,” Cy said. “I think you nailed them.”
Arthur greeted them looking rested and content. “Help me out of here, will you, Larry?” He bent over to pick up his crutches which lay on the carved stretcher of the table. “I’d like to see Tom Newton before he gets away.”
Newton was waiting outside with John Elias, the Assistant Corporation Counsel, and A. Atherton Clark and Ambrose Dane, both of whom were prominent trial lawyers.
Clark, cold as the black and white tile of the entrance hall, held out his hand. “Beautiful legal questions. A very satisfying case,” he said, congratulating Bemrose.
Ambrose Dane, hearty and bearlike, hovered over him. “I kept thinking of the Old Man. He would have enjoyed that argument. Too bad he couldn’t have been up there on the bench.”
The Assistant Corporation Counsel knifed his way into the group. “You did a fine job. I think I’m licked.”
Tom Newton, who fringed the gathering and was waiting for Bemrose, eyed the young lawyer tolerantly. He came in and put his arm around Arthur’s shoulder. “You didn’t forget how in the Army. That was—” He circled his thumb and finger. “But on the nose.”
He motioned to an empty corner across the hall, and Arthur hobbled after him.
A few minutes later Larry heard Arthur say, “Next week, Tom. Not later than Wednesday. And thanks.”
A white-haired woman with a familiar smile embraced Arthur. Larry hadn’t seen Mrs. Bemrose for twenty years, but there was no mistaking the inclusive smile. He left them alone and when he returned, the other lawyers had gone.
“I came early and heard the whole thing,” Mrs. Bemrose reported.
Larry responded to her ample, outgoing spirit. “It was a tough case. He did a fine job.”
“You’ve been good to him. You’ve helped him—” She pressed Larry’s arm by way of thanks.
“His father would like to see him. He didn’t want to come to Court.” Her tired eyes lifted to the glass dome of the rotunda. “Come to supper. You’ll only have to stay a little while.”
Larry wondered whether the day had been too much for Bemrose. The trip up, the strain of the argument, the hand-shaking and standing afterward, and now the family.
But Arthur’s voice was crisp and reassuring. “Tom has a swell job for me in Washington. A war job. He wants me to come down and see him about it next week.”
So that’s why Newton had hung around. To see whether Arthur could handle whatever work he had lined up for him.
“How about letting us take you out to dinner?” Larry asked Mrs. Bemrose. “I haven’t been out with a good-looking girl for years.”
Laughing, she stood aside and let Arthur through the bronze doors. Her big head swept back proudly.
“I hope they’ll take him in Washington,” she told Larry. “I hope they’ll find some interesting war work for him.”
Larry noted that she seemed composed when Arthur fumbled for the rung of his crutches. If she were crying inside, Larry never knew. Apparently Mrs. Bemrose kept her tears where they didn’t show.