
    Supreme Court—Special Term, Kings County.
    March, 1902.
    MATTER OF LAMBERT NEWKIRK.
    (37 Misc. 404.)
    1. Disorderly Person Cannot be Held Under Commitment for “Disorderly Conduct.”
    There is no such criminal offense in the Penal Code or other general law of the State as “ disorderly conduct,” and that charge by police officers and the holding of persons under such charge by magistrates, except in certain cases which may be kept alive by section 1610 of the 3ST. Y. City Charter, is an abuse and oppression, and renders the officer and magistrate liable for false imprisonment.
    2. Same—Habeas Corpus.
    A return to a writ is defective in stating that relator was held for “ disorderly conduct,” but where the warrant of commitment was of a “ disorderly person ” it will hold a defendant who is charged with abandoning his wife without adequate support.
    Issue raised by demurrer to a return to a writ of habeas corpus by the warden- of the Kings County Penitentiary.
    Towns & McCrossin, for relator.
    Alexander McKinny, opposed.
   Gaynor, J.

The return is defective in saying that the relator is held after conviction under a warrant of commitment of a magistrate for disorderly conduct.” There is no such criminal offense in the Penal Code or other general law of the State as disorderly conduct.” Hor is any such offense defined in the city charter, so far as I can find, though the phrase is loosely used there (sec. 701 et seq.). In the charter of the old city of Hew York, however (Consolidation Act, L. 1882, ch. 410), driving or riding a horse through the streets faster than five miles an hour is made a criminal offense there called “ disorderly conduct” (sec. 1448), and in another section (sec. 1458) an offense there called “ disorderly conduct that tends to a breach of the peace ” is defined to be (1) suffering an unmuzzled ferocious or vicious dog to be at large, (2) the plying of her vocation in the street by a common prostitute “ to the annoyance of the inhabitants or passers by,” and (3) “ any threatening, abusive or insulting behavior with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned.” These provisions may be kept in life by section 1610 of the present charter. I am not aware of any other statutory provision creating an offense of disorderly conduct.” The charge of disorderly conduct ” by police officers, and the holding of persons under such charge by magistrates, except in the foregoing cases, and then only when the particular acts constituting the offense are set out in the complaint or information, is an abuse and oppression, and renders the officer and the magistrate liable to an action for false imprisonment. It is a loose charge which standing alone, i. e., without a statement of the acts alleged to constitute it, may mean anything a policeman or magistrate may wish, and has been very generally resorted to in the city of Hew York (where most abuses against individual rights originate), against persons who are guilty of no criminal offense, but whom some' policeman or other person wishes to annoy and oppress by arrest and imprisonment. It is unfortunate that such a loose phrase has any statutory sanction. It is dangerous, in that it affords room for false arrests and oppression, especially of those whose rights and liberties ought to be jealously guarded, namely, the weak, uninfluential and friendless, whose protection should be the chief aim of government.

On looking from the return to the warrant of commitment, however, I find that the relator is therein held as being a disorderly person,” which is a very different thing. The statutes carefully defined who “ disorderly persons ” are, viz., persons who abandon their wives, fortunetellers, jugglers, certain kinds of gamblers, and the like (Code Crim Proc., sec. 899; City Charter, see. 686), and this commitment fully sets out the statutory dereliction which makes this relator a disorderly person, i. e., he has abandoned his wife without adequate support.

The writ is dismissed.  