
    SUPREME COURT—APP. DIVISION—SECOND DEPT.,
    Oct. 4, 1912
    CHARLES E. BOWMAN v. ALFRED P. W. SEAMAN.
    (152 App. Div. 690.)
    (1.) False imprisonment—Jurisdiction of Municipal Court—Criminal CONTEMPT.
    The Municipal Court of the city of New York has statutory authority to punish for a criminal contempt.
    (2.) Same—Process.
    The preliminary notice required by the Municipal Court Act in a proceeding to punish for a criminal contempt may be made in the form of an order to show cause; the provision for the issuance of a warrant in the first instance is not mandatory.
    (3.) Same—Waiver" of defects.
    Moreover, where the party upon whom such order to show cause has been served appears in court in response thereto, and submits to a consideration of the matter on its merits, he waives any defect which may exist in the preliminary process and confers jurisdiction upon the justice.
    (4.) Same—Continuance of jurisdiction.
    Where a justice adjudging a person guilty of a criminal contempt and imposing a fine has jurisdiction both of the person and of the sub-. ject-matter of the controversy, he is not civilly liable for false imprisonment unless jurisdiction was subsequently divested. And even in the latter event, liability can only be based upon actual malice.
    Where in such action the jurisdiction of the inferior court has once been established it need not be affirmatively shown that it was not subsequently lost.
    Appeal by the plaintiff, Charles E. Bowman, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 26 th day of March, 1912," upon the dismissal of the complaint at the open- • ing by direction of the court.upon a trial at the Kings County Trial Term.
    
      
      William, G. Cooke, for the appellant.
    
      Henry A. Friedman ■ {Charles L. Hoffman with him on, the brief), for the respondent Hoffman.
    
      Fugene Frayer {Alexander Pfeiffer with him on the brief), for the respondents Seaman, Lind and Dezell.
   Hibsohbbbg, J.:

The plaintiff’s counsel conceded upon his opening that the action was to recover damages for false imprisonment. The allegations of the complaint are general and indefinite. It alleges in substance that the defendants Hoffman and Lind, “ representing' and pretending”, that Hoffman was .vested with judicial authority, “ did devise and concoct ” • a certain paper “ purporting to be an order of the Municipal Court of the City of Hew. York,” which paper was signed by Hoffman and purported and pretended to require the plaintiff to .appear at a designated place in the Borough of Manhattan and show cause why he should not be punished for a criminal contempt of the said Municipal Court; ” that the defendant.Dezell delivered the paper to the plaintiff, andrepresented and pretended ” that the same was “ a lawful and valid process ” of the'Municipal Court; that the plaintiff appeared' on the return day at the place specified in the paper, whereupon-the, defendant Seapxan, “ representing and pretending'that he was Vested with some, judicial authority so to do,” declared the plaintiff guilty' of' a' criminal contempt of the Municipal Court, and ordered and demanded • of the plaintiff that he should'páy to him, the said defendant Seaman, or some other person designated by'him, 'the sum of one hundred dollars, and threatened and' declared 'that If the plaintiff did not "forthwith make'such payment, "he, the plaintiff, should be committed' tó the county jail for a' period óf- tén days; ” that the plaintiff, believing that the defendant Seaman had power to require such payment and in default thereof to so commit the plaintiff to jail,” offered to go to the borough of Brooklyn. and get that sum of money, which offer was accepted and the plaintiff deprived of his liberty by being taken in the custody of the defendant Dezell to such place in Brooklyn pursuant to the orders of the defendant Seaman, where the defendant Dezell did wrongfully extort and receive from the plaintiff the sum of one hundred dollars.” Those allegations are followed by this paragraph:

“Fourth. And the plaintiff alleges that all the acts of the defendants aforesaid were without authority of law and wrongful. That neither the defendants, Hoffman nor Seaman, were vested with any judicial authority whatsoever to take any such proceedings as they pretended to take against the plaintiff. That the plaintiff was not at any time in contempt of the Municipal Court of the city of Hew York and that neither it nor the defendants or any of them had any jurisdiction over him whatsoever.”

During his opening the plaintiff’s counsel specifically admitted in answer to questions by the learned court below that, at the time.the order to show cause was issued, the defendants. Hoffman and Seaman were justices of the Municipal Court of the city, of Hew York, and appears to have acquisced in the statement of the learned court below to the effect that as such justice the defendant Hoffman issued said order, and that the plaintiff, after the service of the same upon him, appeared before the defendant Seaman, who as,such justice found him guilty of contempt, and fined him $100. Upon the pleadings and those admissions, the learned trial court directed the entry of the judgment appealed from, dismissing the complaint.

I think that the judgment should be. affirmed. The general allegations,of the complaint are limited by the admissions made by the plaintiff’s counsel.. (Sweeney v. O’Dwyer, 197 N. Y. 499.) As so limited, the complaint is that the defendant Hoffman, while" a justice of the Municipal Court of the city of ISTew York, signed an order requiring the plaintiff to show cause why he should not-be punished for a criminal contempt of that court, which order was served on the plaintiff by the defendant Dezell ; that the plaintiff, in obedience to said order, appeared at a term of the court held by the defendant. Seaman, - who. also was at that time a justice of said court, and was by said Seaman adjudged guilty of criminal contempt and sentenced to pay a fine of $100, or in default of such- payment to stand committed to the county jail for -a period óf ten days, and that thereafter the. plaintiff paid such fine.- ■ .. -

The Municipal Court has expressed statutory jurisdiction of the -subject-matter of a proceeding to punish for criminal contempt. (Mun. Ct. Act [Laws of 1902, chap. 580], §§ 4-6.) Section 6 of the Municipal Court Act provides that when the contempt -is not committed in the immediate view and presence of-the court the offender must be notified of the accusation and have a reasonable time to make a defense, and that the court may issue a warrant, directed generally to any-marshal requiring him. to bring the .offender before the court. Section 20 provides that the provisions of the Code of Civil Procedure and the rules and regulations of the Supreme Court shall apply to the Municipal Court so far as the same can be made applicable and are not in- conflict with the Municipal Court Act. At the time of the adoption of section 20 of the Municipal Court Act. it was provided by section 10 of the Code of Civil Procedure, (since repealed and re-enacted as section 751 of the Judiciary Law) that the party to.be punished fo.r a criminal contempt ¡of a- court of record, not committed in the immediate view and.-presence of the court, must be notified-of the. accusation and, Lave a reasonable time to make, a defense. . Proceedings to punish for a civil contempt so committed- against a court of record,nmst be instituted either by an urder, to show,cause or a "warrant of attachment ( Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], § 757; formerly Code Civ. Proc. § 2269), and.proceedings to punish for such a contempt must be instituted by an order to show cause. (Mun. Ct. Act, § 8b, added by Laws of 1910, chap. 539.)

I am of opinion that the preliminary notice required by the Municipal Court Act in proceedings to punish for a criminal contempt may be in the form of an order to show cause, and that the issuance of a warrant in the first instance is not mandatory, and that the defendant Hoffman, as a justice of that court, having jurisdiction of the subject-matter of the contempt proceeding, had jurisdiction to issue such a preliminary order notifying the plaintiff of the charge.

The plaintiff’s subsequent appearance before the court (the defendant Seaman presiding) in response to the order to show cause, and his submission to a consideration of the matter on the merits, waived any defects that might have existed in the preliminary process and conferred jurisdiction of the person. (Sweeney v. O’Dwyer, supra, p. 504.)

The imposition of the fine, therefore, was by a court having jurisdiction both of the person and the subject-matter of the controversy. Under such circumstances it is well settled that there is no civil liability of the presiding magistrate or of those acting under or enforcing his orders, unless jurisdiction is subsequently divested. Even in the latter event, liability could only be based on actual malice. (Austin v. Vrooman, 128 N. Y. 229; Kraft v. De Verneuil, 105 App. Div. 43; Starrett v. Connolly, 150 id. 859.) There are no allegations in the complaint showing a divesting of jurisdiction or that the defendants were actuated by malice. • •

The counsel for the appellant relies for a reversal upon the well-settled rule that when acts or judgments of courts of limited or inferior jurisdiction" are relied upon as giving rights or constituting defenses, all necessary jurisdictional facts must appear in the record and cannot be established by presumption or inference. In the case at bar, however, the admissions in connection with the general allegations of the complaint established the facts that the defendants Seaman and Hoffman wer.e justices of the Municipal Court, acting within their jurisdiction, and that the plaintiff appeared in the contempt proceeding and contested on the merits. Thus the record before us contains sufficient facts to establish jurisdiction. There is no rule requiring that jurisdiction of an inferior court once having been established, must be affirmatively shown not to have been subsequently lost. The decision in Sweeney v. O’Dwyer (supra) is in point here. That was an action against a judge of the City Court of the city of Hew York to recover damages for false arrest. The Court of Appeals held that the first cause of action in the complaint in that cáse as explained by plaintiff’s counsel in his opening, charging that such judge in proceedings properly instituted before him had erronequsly determined that the plaintiff should be imprisoned for. contempt, did not show facts sufficient to constitute a cause of action. Yet the City Court of the city of Hew York, although enumerated, as one of the courts of record, is, like the Municipal Court of the city of Hew York, only a local statutory court of inferior jurisdiction ánd accordingly within the rule invoked by the appellant to the effect that all facts necessary to confer jurisdiction, must affirmatively appear, in the record. (See Frees v. Blyth, 99 App. Div. 541.)

In the foregoing view.of the case at bar it is not necessary to determine the question presented by.the respondents whether the very general and vague allegations of the complaint, if not limited and explained by the plaintiff’s opening, stated sufficient facts to constitute a cause of action.

The judgment appealed from should be. affirmed, with costs.

Burr, Thomas, Carr, and Rich, jj., concurred.

Judgment affirmed, with costs.  