
    Edward Gilbert, Appellant, v. John H. Satterlee and Charles S. Nichols, Respondents.
    
      False imprisonment — the filing of an information alleging a violation of an illegal resolution of a town board— it gives the magistrate jurisdiction — the complainant is liable, if at all, far malicious prosecution — latitude allowed in determining the sufficiency of an information.
    
    One Nichols presented to a magistrate of the town of Berlin, in Rensselaer county, an information alleging that one Gilbert had committed the crime of peddling teas and coffees and' other merchandise in the streets of the town of Berlin without having obtained a license therefor as required by an ordinance-adopted by the town board pursuant to section 184 of the Town Law (Laws of
    . 1890, chap. 569, added by Laws of 1898, chap. 538, and amd. by Laws of 1899, chap. 314). The magistrate issued a warrant for Gilbert’s arrest, but, it. appearing upon, the hearing' that the resolution or ordinance passed by the town board was ineffectual for the reason that if related only to non-residents, of the town, discharged Gilbert.
    In an action subsequently brought by Gilbert against the magistrate and Nichols, for false imprisonment, it was
    
      Held, that'the complaint therein was properly dismissed;
    That the facts stated in the information were sufficient to give the magistrate jurisdiction to issue a warrant for Gilbert’s arrest, and that- the magistrate was . not compelled at the time he issued such warrant to ascertain whether there were defects in • the' resolution or ordinance passed by the town board which might- render it invalid;
    That in issuing the.warrant the magistrate acted judicially and could not be held liable for so doing;
    That the fact that it appeared upon the hearing that the ordinance or resolution adopted by the town board was invalid, and that the accused had committed no crime, did not make the original warrant void or irregular, or render the magistrate liable for having Issued it;
    That the complaint being sufficient to give the magistrate jurisdiction, and the warrant being valid, the complainant was,not, liable for false imprisonment, . but only, if at all, in an action for malicious prosecution;
    That great latitude should be allowed- in determining the' sufficiency of an information attacked-collaterally. ■ '
    Appeal by the plaintiff, Edward Gilbert, from a judgment óf the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Rensselaer on the 9th day.of May, 1904, upon the dismissal of the complaint by direction of the court after a trial at the Rensselaer Trial Term.
    
      John W. Roddy, for the appellant.
    
      James Farrell, for the.respondents.
   Houghton, J.:

.The defendant Satterlee was- one of the magistrates of the town of Berlin in Rensselaer county, and the defendant Nichols presented to him an information alleging that the plaintiff had committed the crime of peddling teas and coffee and other merchandise in the public streets of the town of Berlin without having obtained á 'license therefor as required by an ordinance adopted by the town board, and asked that a warrant for plaintiff’s arrest be issued, which was thereupon done..

By section 184 of the Town Law (added by Laws of. 1898, chap, ■ 538, and amd. by Law's of 1899-, chap. 314) the town board of any town is given the power' to prohibit, by resolution, hawking and peddling goods, such as teas 'and coffee, in public streets or places, or vending -the same from house to 'house, without a license; and by section 187 (added by Laws of 1898, chap. 538) any person so hawking or peddling or vending without a license is declared to be guilty of a misdemeanor.

It appeared upon the hearing, after the plaintiff’s arrest, that the resolution or ordinance which the town board of the town of Berlin actually did pass related only to non-resident peddlers, and. the plaintiff was thereupon discharged, it being then and now conceded that such ordinance was ineffectual because it did not relate to all hawkers and peddlers, but only to a particular class who were nonresidents of the town.

The plaintiff thereupon brought this action for false imprisonment against the magistrate who issued the warrant and the complainant who filed the information, and from the direction of a non-suit by the trial court he takes this appeal.

We think the nonsuit was proper and that the judgment should '.be affirmed.

The town board had the power to pass a valid resolution prohibiting peddling without a license, the violation of which would render a person guilty of a misdemeanor. So far as disclosed by the depo-' ;sition it had passed such valid resolution, effectual to compel the taking out of a license and to render a person hawking and peddling without it guilty of a misdemeanor.

The magistrate was not then compelled to ascertain if there were -defects iii the resolution which might render it invalid. That duty would devolve upon him at a later period when its validity was -challenged.

The verbiage is not all that- could be desired, but in view of the fact that the rule is ‘that great latitude should be indulged in in ■determining the sufficiency of an information attacked collaterally (Swart v. Rickard, 148 N. Y. 264), we are of the opinion that, the information upon which the magistrate issued- his warrant by fair interpretation states that the town board of the town of Berlin had, in pursuance of the authority of the sections of the Town Law -(enumerated) passed a valid resolution prohibiting hawking and peddling teas and coffee in the public streets and places of said town, And that the plaintiff, on a specified day, in said town, committed the •crime of willfully and maliciously hawking and peddling said articles dn the public streets of said town without obtaining a license therefor, and in violation of said sections of the Town Law and of said! resolution. . "

The defendant Satterlee was a magistrate of the town in winch! the crime was alleged to have been committed, and hence lie Lad. jurisdiction of the subject-matter. ' The facts stated in the i-nfor- ' motion presented to him were sufficient to give him jurisdiction over the present plaintiff and to permit, him tó ■ decide whether he would issue a warrant for his apprehension as a person who had. probably committed a crime.

Having thus jurisdiction over the subject-matter and the person accused, the magistrate' acted judicially and cannot be held liable for what he did in that capacity, for it" lias long been the law that' ho-' action will lie against a judgé acting in a judicial capacity for any. error which he- may commit in a matter within his jurisdiction.. (Lange v. Benedict, 73 N. Y. 25.)

Upon the hearing a new fact was developed, that the resolution" . set forth in the information as valid was in fact invalid, and, this-appearing, the magistrate was called upon to exercise further judicial. action, which lie did by-discharging the prisoner. The existence of this fact, or the fact that -the person accused had committed ■ no-crime, did not make the original warrant void or irregular, or render the magistrate liable for having issued it. (Marks v. Townsend,. 97 N. Y. 590, 596.)

The magistrate being thus relieved from liability, the complain,, ant is also relieved, for it is the rule in actions of this character that if the complaint was súfficient to give the magistrate jurisdiction then the eoinplainant cannot be held liable for false imprisonment. (Swart v. Rickard, supra, 264, 267; Marks v. Townsends supra.) The process being valid, the imprisonment ,could not be false. Where the process-of arrest is regylar, an' accusation, falser because the person" charged has committed no crime, or because the law which he has violated is ineffectual to create' a crime, does, not render the accuser liable for false imprisonment. If he-becomes-liable at all, it'is for malicious prosecution.

The judgment must be affirmed, with costs.

All concurred.

Judgment affirmed,-with costs. 
      
      Laws of 1890, chap. 569.— [Rep,
     