
    Charles M. Evarts, appellant, v. Charles Kiehl, respondent.
    
      (Court of Appeals,
    
    
      Filed April 27, 1886.)
    
    Justice of the peace—Liability fob. not entering judgment.
    A justice of the peace is not liable for failure to enter a judgment, unless it is first shown that he rendered such a judgment.
    Appeal from a judgment of the city court of Brooklyn, entered by direction of general term upon a verdict for defendant, subject to the opinion of the general term.
    
      
      Ira Leo Bamberger, for appellant, Charles M. Evarts.
    
      Joseph 8. Bidgway, for respondent, Charles Kiehl.
   Danforth, J.

It is a general rule that a person is not hable to an action, at the suit of an individual, for what he does, or fails to do, as judge (Yates v. Lansing, 5 Johns. 282, 291; S. C., 9 id., 395; Wickware v. Bryan, 11 Wend., 545); but where he omits a ministerial duty, or errs in its performance, it may be otherwise. Here the complaint is that the deféndant, as justice, took jurisdiction of the cause of Stadtmuller v. Bartsch, and, after issue joined, heard the evidence until the case was finally submitted for determination; that it then became his duty to “render judgment, and enter it in his docket-book within four days thereafter.” It should be observed that of these two acts, one, to render judgment, is judicial, and the other, to enter it, is ministerial. The plaintiff alleges a default in regard to the latter only, and his counsel says: “The respondent did not offer any evidence that he had not decided the case.” It appears, however, by the answer, and the case prepared for the appeal, under section 1339 of the Code of Civil Procedure, that neither act was performed. No judgment or decision was made; consequently there was none to enter, and the ministerial duty never attached. No case has been cited which in any degree warrants this action, and the facts suggest nothing in its favor. The appellant was not a htigant before the magistrate. He was merely surety for the plaintiff, but now seeks a recovery, for his own benefit, on an alleged wrong done to his principal, although, for aught that appears, if judgment had been given, it would have gone against Mm. Moreover, the defendant was prevented by sickness from attending to his official duties, and, if this suit succeeds, must answer for his bodily affliction by the diminution of his estate. The doctrine to which I first adverted makes this injustice impossible, and requires the affirmance of the jugment against wMch the appeal was taken.

All concur.  