
    Anton Nowak, App’lt, v. George F. Waller, George W. Jeffery and Egbert Benjamin, Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 12, 1890.)
    
    1. False imprisonment.
    The mere fact that a party went before a magistrate and made abatement of what he regarded as constituting a criminal charge is not sufficient to make him liable for false imprisonment, in the absence of proof of malice, or that he made a false statement, or asked for a warrant or 0 took part in its service.
    2. Same.
    _ It is enough to protect the complainant and the constable that the justice held that the affidavit was sufficient to warrant its issuance.
    3. Same—Magistrate.
    A magistrate who has jurisdiction of the subject-matter is not liable for false imprisonment for a mere mistake of judgment, such as failing to take an examination of the complainant and his witnesses and reducing the same to writing.
    4. Same—Warrant.
    A warrant is not invalid because of an error in its date.
    5. Same.
    A party arrested cannot for his own convenience make a stipulation to appear at a future day and receive a parole and then complain that he was not immediately taken before a magistrate.
    Appeal" from judgment dismissing complaint and from order denying motion for a new trial.
    Action for false imprisonment.
    The defendant, Waller, is a justice of the peace; the defendant, Jeffery, an overseer of the poor, and the defendant, Benjamin, a constable of said town.
    September 15, 1888, the defendant Jeffery presented to said justice of the peace a written statement of one John Seaman, sworn to before a notary public, to the effect that he had purchased liquor of the plaintiff in May, 1888, and also an information or complaint in due' form subscribed by him and sworn to before said justice to the effect that the plaintiff then being licensed to sell intoxicating liquor, did on Sunday, the 20th day of May, 1888, and on divers Sundays since that date, at Islip, in the town of Islip, aforesaid, sell and give away intoxicating liquors, ale, beer and wine, to divers persons, contrary to the form of the statute in such case made and provided.
    
      The justice thereupon issued a warrant to defendant Benjamin, who saw plaintiff and arranged with him to appear on September 21st, the warrant by mistake bearing that date.
    On the day suggested by the constable, the plaintiff appeared with counsel before the justice and demanded a jury trial, on a day subsequent to which time an-adjournment was had by mutual consent On the adjourned day the plaintiff" was tried and convicted by a jury of the offense charged, and was fined fifty dollars by the justice, which amount he thereupon paid under protest.
    Plaintiff thereafter appealed to the court of sessions, where said judgment of conviction was affirmed, and upon an appeal therefrom to the general term of this court said judgment was reversed. The fine which had been imposed was repaid to the plaintiff.
    He then brought this action which came on for trial before Hon. Joseph F. Barnard and a jury at the Suffolk circuit held in October, 1889.
    At the close of the plaintiff’s case his complaint was dismissed as to all of the defendants.
    
      Andrew Heyman, for app’lt; Timothy M. Griffing, for resp’ts, Waller and Jeffery; Wilmot M. Smith, for resp’t, Benjamin.
   Pratt, J.

Defendant Jeffery went before the magistrate Waller and made a statement of what. he regarded as constituting a criminal charge. It does not appear that he made any false statement, or that he entertained any malice against the plaintiff, or that he asked that a warrant should issue, or that he gave any direction or -took any part in its service. These facts did not make him liable to an action for false imprisonment

The justice was authorized by law to receive any information or complaint and issue a warrant in such a case, and it is not material whether the facts sWorn to were in law sufficient to establish the crime attempted to be charged.

■ We conclude, therefore, that defendant Jeffery was not liable and that the warrant was a protection to the constable Benjamin.

The question as to defendant Waller requires a short statement in explanation of the decision to which we have arrived.

The justice had jurisdiction of the subject-matter presented to bim, to wit, the arrest of persons charged with a violation of the excise laws. When the matter was presented to him he was required to decide what was his duty respecting it

The general rule is that where a judge who has jurisdiction of the subjeót-matter errs in his judgment as to whether the facts presented do or do not confer jurisdiction, he is not liable to an action of false imprisonment by a person arrested through an error of judgment Ayers v. Russell et al., 50 Hun, 282; 20 N. Y. State Rep., 323.

The justice here simply made a mistake in failing to take an examination of the complainant and the witnesses, and reducing the .same to writing, as required by the Code of Criminal Procedure.

The test seems to be that there is no liability to civil action if the act was done “in a matter within his jurisdiction.” Lange v. Benedict, 73 N. Y., 12.

The case of People v. Nowak, 24 N. Y. State Rep., 274; 5 N. Y. Sup., 239, is cited by appellant as authority for reversing this judgment. In that case it was held simply that the affidavit was not sufficient to authorize the issuance of the warrant. It is enough to protect both Benjamin and Jeffrey that the justice so held.' Lewis v. Rose, 6 Lans., 209 ; Gardner v. Bain, 5 id., 527.

It was no part of the duty of either of these defendants to examine the record made by the magistrate, and it was impracticable for them to do so.

The warrant was regular upon its face. The mistake in the date injured no one. If a wrong direction was given by the magistrate as to its return and the production of the prisoner, it was not obeyed," as the constable made an amicable arrangement with the prisoner that he should appear upon the 21st of September before the justice, and he was thereupon paroled. A party cannot for his own benefit make a .stipulation to appear at a future day for his.own convenience and receive a parole, and then complain that he was not immediately taken before a magistrate.

Judgment affirmed.

Dykman, J., concurs.  