
    In the Matter of Seward Baker, City Magistrate of the City of New York.
    
      Charges against a police magistrate of the city of New York—what must be. shown to justify his removal becaMse of his homing dismissed persons charged with, having in their possession writings relating to the game of policy.
    
    The action of á police magistrate of the city of New York in discharging, on the ground that the evidence was insufficient to authorize him to hold them, ■ persons arraigned before him charged with a violation of section 344a of the Penal Code relative to the possession of any writing relating to a public or private lottery or tó the game of “policy,” will not, even though his action was improper, justify his removal under section X401& of the charter of th& city of New York, in the absence of evidence that he did not fairly consider the testimony before him and determine the questions submitted as he thought the administration of justice required, or that his decision was so clearly wrong that it exhibited a corrupt intent or showed that he was incompetent to perform the duties of his office.
    The fact that, upon evidence similar to that produced before the magistrate, the grand jury subsequently indicted the persons whom the magistrate discharged, and that such persons were either convicted or pleaded guilty, is immaterial.
    Presentation to the Appellate Division of charges against a city magistrate of the city of New York, pursuant to section 1401a of the charter of the city of New York.,
    
      Henry W. Taft, for the petitioner.
    
      Julius M. Mayer, for the city magistrate,
   Ingraham, J.:

These charges are presented by a petition under section 1401a of the charter of the city of New York (Laws of 1901, chap. 466) which provides that a city magistrate or police clerk may be removed for cause, after due notice and an opportunity of being heard, by the Appellate Division of the Supreme Court within the division for which such city magistrate or police clerk was appointed, and are based upon rulings of the city magistrate in discharging persons brought before' him charged with a violation of section 344a of the. Penal Code, which provides, that a person who shall have in his possession, knowingly, any writing, paper or document, representing or being a record of any chance, share or interest iii numbers sold, drawn or to be drawn, or in what is commonly called ‘ policy,’ or in the nature of a bet, wager or insurance, upon the drawing or drawn numbers of any public or private lottery, or any paper, print, writing, numbers, device, policy slip, or article of any kind such as is commonly used in carrying on, promoting or playing the game commonly called policy,’ * * * is a common gambler,” and punishable by imprisonment or fine.

The petition charges that at certain times in the years 1903 and 1904, the specific dates of which are set forth, there were brought before the magistrate a number of persons charged with á violation of section 344a of the Penal Code, and that the said magistrate, sitting as a magistrate in the fifth district Magistrate’s Court of the first division, situated at the' corner of One Hundred and Twenty-first street and Sylvan place, in the borough of Manhattan, Hew York city, did pass on and dispose of the cases of all of said persons, and that at the conclusion of the examination of seven of said defendants the said magistrate did dischai'ge from custody the entire number on the ground that there was not sufficient evidence set forth in the testimony given before him to hold the defendants for the grand jury, and that lie refused to hear the testimony in the case of one other and discharged him; that these persons so discharged were subsequently indicted by the grand jury upon evidence similar to that submitted to the magistrate; and .that in failing to hold the said defendants thus indicted the magistrate failed to pe rform the duties of his office, and did wrongfully, willfully, unfairly, unjustly and fraudulently discharge said defendants and showed himself incompetent to act as a city magistrate for the city of New York. The magistrate meets those charges by certified copies of depositions before him upon which he acted and his answer to the petition stating the circumstances under which he acted in relation to the charges against the individuals specified in the petition, and he asks that the charges be dismissed.

The provisions of section 1401a of the charter of the city of Hew York do not specify the.cases in which this court is justified in removing a city magistrate; but when the charges against a city magistrate are based upon his judicial action, something more is necessary, to justify the charges, than a statement that the magistrate made an error in "applying legal principles to the decision of cases before him. The magistrate held that, to justify him in holding a prisoner accused of a violation of section 344a of the Penal Code, there must be evidence that the policy slips in the possession of the persons charged were'in some way connected with a lottery, and that the evidence before him was not sufficient to show that the papers found upon the person arrested and brought before him had any connection with any lottery or policy drawing.

We are not called upon on this application to express an opinion upon the correctness of the magistrate’s ruling. If it was wrong, it was an error of judgment, and in the absence of evidence that the magistrate did not fairly consider the testimony before him and determine the questions submitted as he thought the administration of justice required, there is no basis for a charge against the magistrate which would justify us in removing him. We do not think that the facts stated in the petition were sufficient to justify a charge being made against this magistrate. It was the duty of the magistrate to protect the rights of the individual arrested, and he was not justified in holding him unless it appeared from the examination that a crime had been committed and that there was sufficient cause to believe the defendant guilty thereof. (Code Crim. Proc. § 208.) The crime alleged in this case consisted of the possession of a writing, paper or document, representing or being a record of a chance, share or interest in numbers sold, drawn or to be drawn, or in what is commonly called “ policy.” Whether the facts shown upon the examination were sufficient to satisfy the magistrate that a crime had been committed — that is, that the defendant had in his possession such writing, paper or document — was a question which he had to determine from an inspection of the documents found upon the person and the other circumstances proved before him. Certainly, in the record as presented, we cannot say that the decision in these cases was so clearly wrong that it exhibited a corrupt intent or showed that the magistrate was incompetent to perform the duties of his office; and this is all that is necessary or proper for us to say in disposing of these charges. The fact that the grand jury subsequently indicted these same persons, and that they were either convicted or pleaded guilty, has no relation at all to the act of the magistrate if he acted in good faith and honestly determined that the evidence was not sufficient; and there is not a particle of evidence that he did not. This is not a proceeding to review his determination, and there is nothing either in the charges or in any of the papers produced before us which is sufficient to justify the conclusion that the magistrate did not exercise his best judgment in disposing of these charges or do other than what he thought was just under the circumstances.

The charges are, therefore, dismissed.

Van Brunt, P. J., Patterson, McLaughlin and Laughlin, JJ., concurred.

Charges dismissed.  