
    The People ex rel. Henry Lanzondoven, App’lt, v. Frank G. Schirmer, Sheriff, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 9, 1889.)
    
    Jurisdiction—Acting city judge of Yonkers.
    Under the charter of Yonkers the mayor is required to designate a justice of the peace, who shall exercise criminal jurisdiction only in the case of sickness, absence, disability or inability to act of the city judge. Held, that inability to act did not alone mean physical inability ; that the city judge being unable to attend because of engagement in removing his family from their summer resort, this constituted a sufficient inability to justify the justice in acting.
    Appeal from order dismissing proceedings on habeas corpus, and remanding relator.
    Relator was arrested and tried at a court of special sessions, before W. W. Schrugham, a justice of the peace acting as city judge, having been duly designated to act as such. He was convicted of assault and battery in the third degree. At the time of the trial the city judge had been in the city about four hours, but was engaged in removing his family from their summer resort. The acting justice knew of the city judge’s return.
    
      Walter J. Donahue, for app’lt; Nelson H. Baker, district attorney, for resp’t; W W. Schrugham, in person.
   Barnard, P. J.

By the charter of the city of Yonkers, the city judge has exclusive jurisdiction in all cases triable by courts of special sessions before justices of the peace in towns. Ohap. 184, Laws of 1881, title 3, § 7.

By § 8 of this title it is made the duty of the mayor to designate in writing, to be filed in the office of the city clerk, one of the justices of the peace of the city, “ who shall only in case of sickness, absence from the city, disability or inability of the city judge to act, exercise in the place and stead of the city judge criminal jurisdiction such as is conferred by law upon justices of the peace in towns, during the time of such sickness, absence, disability or inability shall continue.”

The mayor designated a justice of the peace under this section, and he tried the relator. It appears that the city judge arrived home from his vacation at about noon of the day of trial. He did not go to the office, and although the justice of the peace knew of his arrival in the city, held the court for the trial of relator for a criminal offense. It was proven that the city judge was unable to attend because of his engagement in attending to the removal of his family, which consisted of twelve persons, from their summer resort to his home in Yonkers. This was a sufficient inability of the city judge to justify the action of the justice of the peace. Inability to act does not alone mean physical inability.

If there be a duty of paramount importance, such as sickness in his family or other contributory causes which prevent his attendance to the official duty, a case is made for the action of his substitute.

The judgment should be affirmed, without costs.

Pratt, J., concurs ; Dykman, J., not sitting.  