
    SUPREME COURT—SPECIAL TERM—KINGS CO.,
    January 10, 1912.
    STARRETT v. CONNELLY.
    (134 N. Y. Supp. 830.)
    (1) Jurisdiction of magistrates’ courts—Cruelty to animals.
    
    The Court of Special Sessions of New York city, by sec. 31, ch. 659, of the Laws of 1910, is given exclusive jurisdiction of all charges of misdemeanor, but by the same enactment is divested of authority to proceed with the hearing and determination of the issue, if the defendant under a charge of violation of any statute designed for the prevention of cruelty to animals, pleads not guilty before he is held to await trial in the Court of Special Sessions.
    (2) Same.
    Where plaintiff was arrested under a warrant issued by a city magistrate, and arraigned before the latter under a charge of cruelty to animals, whereupon he entered a plea of “ not guilty ” and the examination was thereupon continued to a later day, upon which the magistrate tried the issue, found the plaintiff guilty, and passed sentence upon him, held, that the magistrate was without jurisdiction to try a defendant under a misdemeanor charge who had plead “ not guilty,” as his powers were limited to the conduct of an examination.
    Action by Howard S. Starrett against Maurice E. -Connelly. Oil defendant’s motion for judgment on the pleadings.
    
      J. Edward Murphy, for the motion.
    
      Basquin & Basquin (Bolland B. Basquin, of counsel), opposed.
    
      
       See Note on Preliminary Proceedings, Vol. 27, p.-.
    
    
      
       See Note on Cruelty to Animals, Vol. 26, p. 343.
    
   Stapleton, J.:

This is a motion by defendant for judgment on the pleadings. The pleadings presented for examination are a complaint and a demurrer. -The demurrer is interposed on the ground that the facts stated in the complaint do not constitute n cause of action.

The action is for damages for false imprisonment. The defendant was, at the times mentioned in the complaint, a city magistrate of the city of Hew York. The plaintiff was .charged before the magistrate with a violation of section 185 of the Penal Law (C'onsol. Laws 1909, c. 40). This is a law designed for the prevention of cruelty to animals, and a violation of its provisions is declared a misdemeanor.

It appears from the complaint that on the 10th day of September, 1910, the plaintiff was arrested by virtue of a warrant issued by the defendant as a city magistrate, and that on that day he was brought before the magistrate upon the charge of having committed that crime; that he pleaded “not guilty that the examination was adjourned until the 13th day of September, 1910; that on the 13th day of September, 1910; the magistrate proceeded to try the issue thus raised, and found plaintiff guilty of the charge of violating section 185 of the-Penal Law, and sentenced him to pay a fine of $100 and to be -confined in the county jail for a period of 20 days; that the magistrate thereupon issued a commitment to the sheriff of the county of Queens, and that pursuant thereto the plaintiff was confined in the jail from the 13th day of September, 1910, to the 16th day of September, 1910, and that as a consequence he suffered injury and damage.

By section 31 of chapter 659 of the Laws of 1910 the Court of Special Sessions for the City of Hew York was vested with -exclusive jurisdiction to hear and determine all charges of misdemeanor committed within the City of Hew York, except charges of libel. The court, however, by the same section, is divested of authority to proceed with the hearing and determination of any charge of misdemeanor under certain conditions, the only one of which having any bearing upon the question presented for determination is stated in the act in the following words:

“ If before he is held to await trial in the Court of Special Sessions, a person charged with a violation of the Motor Vehicle Law, first offense, or a violation of any law for the prevention of cruelty to animals, in any city magistrate’s court, shall plead guilty.”

The source of the defendant’s authority must be found in the statutes of the state, and they will be searched in vain to find any authority giving him the right to conduct the trial of a defendant charged with a misdemeanor where a plea of “ not guilty” has been interposed. His powers were restricted to conducting an examination.

In the case of McCarg v. Burr, 186 N. Y. 467, at page 471, 79 N. E. 715, at page 716, the Court of Appeals, in examining a state of facts practically similar to those under investigation here, said:

“ In determining to proceed with the trial of the plaintiff, the defendant was not committing a mere error in ruling with respect to the extent of his jurisdiction, in which case he would have been acting judicially and would have come under no liability; but he was proceeding without ever having acquired jurisdiction to try the plaintiff.”

'The defendant contends that he brings himself within the immunity extended to the defendant in Austin v. Vrooman, 128 N. Y. 229, 235, 28 N. E. 477, 478, 14 L. R. A. 138. In that case the court said:

“ In such a case as this it must be remembered that the justice had in the first instance at all events jurisdiction of the subject-matter, viz., the inquiry into alleged offenses against the provisions of this act, and the trial of alleged offenders. He also had jurisdiction of the person of the plaintiff. Eull jurisdiction had thus been confided to the justice over subject-matter and person at the time when the plaintiff was arraigned before him. In the absence of a proper demand and the giving of sufficient bail, it was the duty of the justice, and his jurisdiction continued, to try the accused. This would seem to be a cáse where, jurisdiction having been attached, the decision of the justice to try the plaintiff was only an erroneous exercise of such jurisdiction. It is unlike the case where jurisdiction has never been conferred and the justice decides to exercise a power that he does not and never did possess.”

It appears to me that the facts alleged in the complaint reveal that the case complained of in plaintiff’s pleading is one where jurisdiction to try the plaintiff was never conferred and the magistrate assumed to exercise power, to plaintiff’s harm, he did not and never did possess:

In Cooley on Torts (2d Ed.), p. 489, the declaration, which is amply sustained by authority, is made that:

It is universally conceded that, when inferior courts or judicial officers act without jurisdiction, the law can give them no protection whatever.”

See Rutherford v. Holmes, 66 N. Y. 368; McKelvey v. Marsh, 63 App. Div. 396, 71 N. Y. Supp. 541; Warner v. Perry, 14 Hun, 337.

Motion for judgment must be denied.  