
    SUPREME COURT—APP.DIVISION—SECOND DEPT.,
    May 1, 1912.
    STARRETT v. CONNELLY.
    (135 N. Y. Supp. 325.)
    Magistrate’s Court jurisdiction—Preliminary proceedings—Cruelty TO ANIMALS.
    
    Where a defendant charged with a violation of sec. 185, Penal Law, which makes cruelty to animals a misdemeanor, is arraigned before’ a magistrate of the city of New York, and enters a plea of not guilty, the magistrate has jurisdiction to thereupon conduct am examination for the purpose of determining whether or no there is reasonable-ground to order the defendant held for trial, but there is no jurisdiction in the Magistrate’s Court to try the defendant and fix the punishment.
    Reversing same case at Special Term, p. -, this volume, but on-other grounds than- those upon which the Special Term decision was-founded.
    Appeal from Special Term, Kings Qounty.
    Action by Howard iS. iStarrett against Maurice E. Oonnolly. Erom an order denying Ms motion for judgment on the pleadings (134 N. Y. Supp. 830), defendant appeals. Girder reversed and motion granted, with leave to plaintiff to amend Ms complaint.
    Argued before Jen-ks, Pi. J., and Htrschberg, Thomas, Cake, and Woodward, JJ.
    
      ■J. Edward Murphy, of New York city, for appellant.
    
      Holland R. Rasquin, of New York city, for respondent..
    
      
       See Note on Preliminary Proceedings, Vol. 27, p.-.
    
    
      
       See Note on Cruelty to Animals, Vol. 26, p. 343.
    
   Cabe, J.:

The defendant appeals from an order denying his motion for judgment against the plaintiff on the pleadings. The action was brought to recover damages for false imprisonment. The defendant was a city magistrate in the borough of Qyeens. The plaintiff was arraigned before him on a charge of having violated section 185 of the Penal Law (Consol. Law 1909', c. 40). The warrant on which the plaintiff was brought into court had been issued by the defendant. He pleaded not guilty and thereafter an examination was had, at the close of which the defendant adjudged the plaintiff guilty of the charge, and imposed a fine of $100, and committed him to the county jail for a period of 20 days. The plaintiff was confined under said commitment for several days, but was thereafter discharged from custody. The plaintiff claims damages for said imprisonment as being unlawful and as having been made under a judgment and commitment which the defendant had no official power or jurisdiction to make.

As a city magistrate, the defendant had power and jurisdiction to hold an examination of the charge made against the plaintiff, and to determine whether there was reasonable cause to hold him for trial. The offense complained of was a misdemeanor, of which, in the City of Hew York, the Court of Sjpecial Sessions had exclusive power to try, determine, and impose a punishment. Chapter 659 of the Laws of 1910, § 41. The city magistrate, however, had power to impose a penalty “ upon a plea of guilty to a charge of violation of the motor vehicle law, first offense, or of a violation of any law for the prevention of cruelty to animals.” Id. § 72. In proceeding, therefore, to adjudge the plaintiff guilty of the charge and in imposing a punishment, the defendant exceeded his jurisdiction, and acted unlawfully. The complaint does not show that the plaintiff challenged before the defendant the exercise of jurisdiction by the defendant, nor does it allege that the defendant acted maliciously in what he did.

The excess of jurisdiction is clear, but the question whether the defendant is liable civilly to the plaintiff is not altogether free from doubt. There are many cases to be found in the books in which magistrates of inferior courts have been held civilly liable for damages for false imprisonment resulting from official action without jurisdicion; but in thesé cases it will be found that the magistrate never had lawful jurisdiction of the person of the defendant nor of the subject-matter of the criminal proceeding. Such is the recent case of McCarg v. Burr, 186 N. Y. 467, 79 N. E. 715. There a justice of the peace issued a warrant for the arrest of an alleged offender said to have committed a penal offense in an adjoining town. By the statute which gave the justice power to issue a warrant, it was provided that the warrant should be returnable before a justice in said adjoining town. Notwithstanding this, it was made expressly returnable before the justice who issued it, and this justice, against the objection of the defendant, proceeded to try the charge, and made a determination of the prisoner’s guilt and inflicted a punishment. It was held that the justice was liable civilly for damages, inasmuch as his warrant was a legal nullity, and he therefore never had lawful jurisdiction of the person of the prisoner nor the subject-matter of the proceeding. Where, however, a magistrate had acquired lawful jurisdiction of the person of the prisoner and of the subject-matter of the charge, but had become divested of jurisdiction by some subsequent step in the proceeding, but proceeded beyond his jurisdiction in making a determination and in imposing a punishment, he has been held exempt from civil liability unless he had acted maliciously. Austin v. Vrooman, 128 N. Y. 229, 28 N. E. 477, 14 L. R. 138; Kraft v. De Verneuil, 105 App. Div. 43, 94 N. Y. Supp. 230. The rule is that, whenever a magistrate has jurisdiction of the subject-matter and lawful jurisdiction of the person of the alleged offender, he does not become civilly liable for a. judicial error in the proceeding by which he determines that he has jurisdiction to do some further act therein. Austin v. Vrooman, ut supra. The complaint in this action contains no allegations challenging the sufficiency of the warrant upon which the plaintiff was brought before the defendant. Therefore, apparently,the defendant had jurisdiction both of the person of the plaintiff as well as of the subject-matter, for the offense charged was cognizable by a city magistrate up to a certain point. The defendant pleaded not guilty, and thereby became entitled to an examination before the magistrate. In holding this examination the magistrate was still within his jurisdiction. If he determined that there was reasonable cause to believe the defendant guilty, then his further conduct was prescribed by the statute. His mistake was that in proceeding up to a certain point with full jurisdiction of person and subject-matter he nevertheless through judicial error went beyond his jurisdiction, and in determining between two courses, of one of which he had jurisdiction, he proceeded, however, upon another course as to which he had no jurisdiction whatever. If this was a malicious act, then he should be liable civilly. If it was a judicial error simply, then no civil liability should attach. We think, therefore, that the complaint as framed does not state a good cause of action.

The order should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs, with leave to the respondent to amend his complaint on payment of costs, as above prescribed, within 20 days. All concur.  