
    John McNamara, Appellant, v. Archer B. Wallace, Respondent.
    
      Cash deposit f or tail — a police justice cannot accept it — it must te paid to the county treasurer — recovery of money so deposited with a police justice.
    
    A police justice has no authority to accept a cash deposit in lieu of hail. Any cash deposited must he made with the county treasurer, and a police justice as such may not act as his agent in receiving it.
    
      Where a police justice- accepts a deposit of money in lieu of bail it is his duty to return the deposit to the person making it upon demand, regardless of the result of the criminal proceeding or the presence of the prisoner; if he fails to comply with such demand the party making the deposit may maintain an action against him to recover the same.
    Appeal by the plaintiff, John McNamara, from a judgment of the County Court of Nassau county, entered in the office of the clerk of the county of Nassau on the 19th day of December, 1903, upon an order entered in said clerk’s office on the 19th day of December, 1903, affirming a judgment of a justice of the peace of Nassau county in favor of the defendant, entered on the 19th day of May, 1903, sustaining a demurrer to the plaintiff’s complaint.
    
      Lincolin B. Haskin, for the appellant.
    
      George Wallace, for the respondent.
   Woodward, J. :

The plaintiff brings this action to recover twenty-five dollars of the defendant, the police justice of the village of Freeport, it being alleged that “on or about October 18, 1902, IT. J. Raymore deposited with the said defendant the sum of $25 to secure the attendance of Mrs. Ellen McNamara, at a trial before said defendant ; that when the day came for said Mrs. Ellen McNamara to be tried, the said defendant, Archer B. Wallace, did not appear to hold court; that the said Mrs. Ellen McNamara, her witnesses and counsel and the jury were in court; that after waiting more than one hour beyond the time appointed by said defendant to try her and after the jury left, she departed and went to her home, said justice, the defendant in this action, having lost jurisdiction by his failure to appear at the time appointed.” The complaint then alleges an assignment of the interest of H. J. Raymore in the deposit of twenty-five dollars; alleges that a demand has been made upon the defendant for the said twenty-five dollars, and that the defendant refused and neglected, and still refuses and neglects, to pay to this plaintiff said twenty-five dollars, and that “ defendant admitted to this plaintiff that he has parted with the said $25.” The complaint demands judgment for the twenty-five dollars, with interest. The defendant put in a general denial in the first instance, but subsequently demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause- of action, and judgment was rendered against the plaintiff for costs. This judgment has been affirmed by the County Court, and appeal comes here.

Without holding that the police justice lost jurisdiction of the cause by reason of his failure to appear at the time appointed for the trialj we are of opinion that this judgment should be-reversed on grounds of public policy. “ Police justices have such jurisdiction, and such only, as is specially conferred upon them by statute.” (Code Grim. Proc. § 74.) We find no provision of law permitting a police justice to accept a cash deposit in lien of bail. Section 586 of the Code of Criminal Procedure provides that “ the defendant, at any time after an order admitting him to bail, instead of giving bail, * * * may deposit with the county- treasurer of the county in which he is held to answer or appear, the sum mentioned in the order or commitment; and upon delivering to the officer, in whose custody he is, a certificate of the deposit, he must be discharged from custody.” There is no authority for the police justice to act as the agent of the 'county treasurer in receiving this deposit; the magistrate is authorized to accept bail (Code Grim. Proc. § 557), but when there is a substitute of a cash deposit it must be made to the county treasurer, and it is upon his certifícate that the prisoner is given his liberty. The police justice in the case now before us took this cash deposit by color of his office, and without authority'of law, and under the rule laid down in Eagan v. Stevens (39 Hun, 311) the money belonged to the person making the deposit, and upon demand it should have been returned to him or his assignee, regardless of the result of the proceeding or the presence of the prisoner. It is true that in the case of People ex rel. Gilbert v. Laidlaw (102 N. Y. 588, 592) it was held that -in law the cash deposit belonged to the defendant, and might be applied in payment of the fine imposed, even though the money was, in fact, furnished by a third party, but this rule can have no bearing where the deposit .was made without authority of law and was accepted by the police justice by color of his office. (Eagan v. Stevens, supra, 313.) The police justice, assuming to have authority, took the money of H. JL Eaymore in lieu of bail. This action on his part was wholly void : he came into the possession of the money because he was police justice, not because he had any legal right thereto, and the public policy of the State having decreed that police justices should have only the authority specifically given them by statute, any one who has been illegally deprived of his money by reason of the misconduct of the police justice may recover the same. (Eagan v. Stevens, supra.)

The judgment appealed from should be reversed, with costs.

All concurred; Bartlett and Hooker, JJ., in result.

Judgment of the County Court of Nassau county reversed, with costs. ,  