
    John McCarg, Respondent, v. John W. Burr, Appellant.
    
      Warrant issued by a justice of the peace, became of an offense committed ip another town, and not made returnable befoi'e a justice of such town—the justice issuing it is liable in an action for false imprisonment.
    
    Upon the presentation to a justice of the peace of the city of Gloversville, Pulton county, of a sufficient complaint alleging the commission of a crime in the town of Mayfield, Pulton county, the justice issued a warrant and made it returnable before himself instead of before a justice of the town of Mayfield, as he was required to do by section 151 of the Code of Criminal Procedure. The offender, on being brought before the justice pursuant to the direction of the warrant, raised the objection of a defect in the warrant, but the justice overruled such objection and proceeded to try the offender and to render a judgment of conviction against him, which judgment was subsequently reversed.
    Held, that the warrant did not confer upon the justice jurisdiction over the offender, and that the justice was liable to the offender in an action for false imprisonment.
    Houghton and Chester, JJ., dissented.
    Appeal by the defendant, John W. Burr, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 4th day of June, 1903, upon the verdict of a jury for $175, and also from an order entered in said'clerk’s office on the 16th day of June, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    The defendant was, in 1901, a justice of the peace of the city of Gloversville. Upon the 29th day of July,’1901, he issued a warrant for the arrest of the plaintiff herein upon an information and deposition charging a violation of section 655 of the Penal Code at the town of Mayfield, Fulton county, M. Y., to wit, cruelty to animals, which offense is enumerated in subdivision 27 of section 56 of the Code of Criminal Procedure, which provides for the jurisdiction of Courts of Special Sessions, except in the city and county of Mew York and the city of Albany. The warrant required that the plaintiff be brought before the defendant as said justice. Under said warrant the plaintiff was arrested and arraigned before said justice upon the 30th day of July, 1901. He was informed of his right to employ counsel, and the case was adjourned by the court, to permit the plaintiff in the present action to procure counsel, to the 10th day of August, 1901, and' the plaintiff in the present action remanded to the custody of an officer. On August 10, 1901, the plaintiff appeared with his counsel, who, at the opening of the court, objected to any further proceedings and moved for his discharge upon the grounds, among others, that as the crime was committed in the town of Mayfield, Fulton county, the court was without jurisdiction, and that the warrant was fatally defective in that it did not contain the direction required by section 151 of the Code of Criminal Procedure, viz., “ that the defendant be brought before a magistrate of the town in which the offense was committed.” These objections were overruled. The jury was impaneled, the plaintiff was tried and found guilty, and an adjournment -was taken until the 14th day of August, 1901, for the purpose of pronouncing sentence. Upon said date the plaintiff appeared and again renewed his objection to the jurisdiction of the court. The defendant sentenced the plaintiff to pay a fine of $25 and he imprisoned in the Fulton county jail not exceeding twenty-five days in default of the payment thereof. An appeal from said conviction was taken upon "the 14th day of August, 1901, to the Fulton County Court, which conviction was thereafter reversed by said court. Thereafter and upon the 5th day of February, 1903, this action wa$ brought to charge the defendant for damages for false imprisonment. The- jury rendered a verdict in favor of the plaintiff for the sum of $175 and costs, and judgment was thereafter entered for the sum of $279.58. A motion was made for a new trial, which was denied, and from this judgment and this order denying the motion for a new trial this appeal has been taken.
    
      N. H. Anibal, for the appellant.
    
      Eugene D. Scribner, for the respondent.
   Smith, J.:

The charter of the city of Gloversville (Laws of 1899, chap. 275, § 10) provides for the election of two justices of the peace, and by section 35 of that act it is provided that “ the justices of the peace of the-city of Gloversville shall have the same power, duties and jurisdiction, the same fees and compensations, and be subject to the same liabilities as if the city of Gloversville were a town in the county of Fulton, and they were justices of the peace thereof; except that they shall have no jurisdiction in any criminal action or proceeding or special proceeding of a criminal nature, other than a bastardy proceeding, for or on account of any offense committed or charged to have been committed within said city, except as otherwise provided herein in the case of the absence or inability or disability of the recorder.” By section 56 of the Code of Criminal Procedure Courts of Special Sessions, except in the city and county of New York and the city of Albany, are given in the first instance, subject to a certain power of removal, exclusive jurisdiction to hear and determine charges of misdemeanors, committed within their respective counties, in certain cases, among which is specified cruelty to animals or children. By section 655 of the Penal Code a person is declared guilty of a misdemeanor who cruelly beats or unjustifiably injures an animal, whether belonging to himself or to another. By section 151 of the Code of Criminal Procedure is provided the form of a warrant to be issued by a magistrate upon a complaint. In that section it is provided: “ The warrant must direct that the defendant be brought before the magistrate issuing the warrant, or if the offense was committed in another town, and is one which a Court of Special Sessions has jurisdiction to try, or which a magistrate has jurisdiction to hear and determine, he must direct that the defendant be brought before a magistrate of the town in which the offense was committed.”

The complaint presented to the defendant showed sufficient cause for the issuing of a warrant for the arrest of the plaintiff. The warrant, however, made returnable to himself was clearly in excess of his authority and in violation of the provisions of the Code of Criminal Procedure. The offense having been committed in the town of Mayfield and not within the city of Gloversville, the warrant should have been made returnable to a justice of the peace within the town of Mayfield. Upon this warrant, issued without authority, the plaintiff was brought before the defendant, and, although objecting to the jurisdiction of the defendant, was tried, convicted and imprisoned by sentence which defendant pronounced. He has been deprived of his liberty by process issued by the defendant without authority and which was void. For this unlawful imprisonment the defendant is clearly liable, unless he be excused by reason of his judicial piosition and because his act in issuing the warrant was a judicial act for liability for which the law, through public policy, exempts a public officer.

In Bigelow v. Stearns (19 Johns. 39) the head note reads: “If a court of limited jurisdiction issues process which is illegal'; or if a court, whether its jurisdiction be limited or not. holds cognizance of a cause, without having gained jurisdiction of the person of the defendant, by having him before them, in the manner required by law, the proceedings are void. And in the case of a limited and special jurisdiction, the magistrate attempting to enforce a proceeding founded on any judgment, sentence or conviction, in such a case, is a trespasser.. * * * Whenever a new power is conferred on a justice of the peace, he must proceed in the.mode prescribed by the statute. Where the act for suppressing immorality, * * * which authorizes a justice to convict for offenses against the statute, requires him to cause the party to be brought before him, and, upon proof, &c., to convict him in the manner prescribed : Held, that the justice could not, on the return of a precept or summons personally served, proceed to hear the proofs and convict the party who had failed to appear, without having him brought before him.”

In Reynolds v. Orvis (7 Cow. 269) the defendants, as justices of the peace, had issued a warrant, directed to any constable of the county, and had delivered it to a constable of a' town other than that in which the plaintiff, a claimed pauper, resided. The plaintiff was arrested and brought before the justices, who examined him and made the order of removal which was" executed. By section 7 of chapter 78 of the Revised Laws of 1813 (1 R. L. 280, 281) a warrant for the examination of a pauper was required to be directed to a constable of the city or town where the pauper resided. But it could only be executed by a constable of the town where the pauper resided. In that case it was held that while the justices had authority to issue the warrant, because they delivered it to a constable of a town other than that in which the pauper resided and proceeded upon an arrest made by such constable of such other town, they were liable for the false imprisonment. It was there held that the justices had no jurisdiction of the. process and of the person of the defendant, and that the matter was coram, non judice, and the acts of the justices therein were held to be unlawful and to constitute a false imprisonment of the plaintiff. In the opinion in that case it is said: “The doctrine advanced is supported by the case of Bigelow v. Stearns (19 John. 39). It is there laid down that if a court of limited jurisdiction issues process which is illegal; or if a court, whether its jurisdiction be limited or not, holds cognizance of a cause without having gained jurisdiction of the person of the defendant, by having him before them in the manner required by law, the proceedings are void. In that case Chief Justice Spekcer observed, I consider it perfectly well settled, that to justify an inferior magistrate in committing a person, he must have jurisdiction, not only of the subject-matter of the complaint, but also of the process and the person of the defendant.’ ” In Blythe v. Tompkins (2 Abb. Pr. 468) Mr. Justice Balcom, at Special Term, held : “A justice of the peace acts ministerially in issuing and delivering a criminal warrant to an 'officer to be executed. If such warrant is not valid on its face, the justice who issues and the officer who executes it are liable for assault arid battery and false imprisonment at the suit of the person arrested upon it.”

It is undoubtedly true that, for an error of judgment in performing a judicial act, a judicial officer is not responsible civilly. For an erroneous determination that the facts stated in a complaint are sufficient to constitute a crime he is exempt from liability because the act is judicial. If, however, the facts be stated only upon information and belief, it is held that that is not a statement of facts sufficient to call for the exercise of judicial judgment, and for the issuance of a warrant upon such complaint a justice is held liable in a civil action. (McKelvey v. Marsh, 63 App. Div. 396.)

The cases are not entirely in accord in defining the border line beyond which a judicial officer cannot go without subjecting himself to civil liability. Some confusion has arisen also in the statement of the law as applied to actions against the judicial officer, and as applied to actions against the executive officer who executes the warrant which the judicial officer issues. It may be if in certain cases this justice had authority to issue this warrant returnable to himself for an offense committed in the town of Mayfield, then his failure properly to determine that this was such a case does not render him civilly liable. (See Hoose v. Sherrill, 16 Wend. 33.) Such an act would seem to be held to be a judicial determination from liability for which he is exempted. Also, if the jurisdiction were opee obtained of the subject matter and of the defendant, a mistake as-to the extent of the jurisdiction has been held to be a mistake for which the judicial officer is not liable. (Austin v. Vrooman, 128 Y. 233.) In analogy with the rule held in this case it is strongly-urged that inasmuch as a complaint was presented sufficient to authorize the defendant to act, his error in determining the nature'of the warrant which he should issue or where it should be returnable must be deemed a judicial act. The same argument, however, might have been made in the case of Reynolds v. Orris (supra). There, upon a sufficient complaint, the proper warrant was issued but-delivered to the wrong constable. The determination by the. justices of what constable should execute the warrant was certainly no-less a judicial determination than the determination as to where the-warrant should be made returnable; The justices were there held liable civilly as for false imprisonment.. This case has been often cited and never discredited, and in the absence of authorities holding the contrary rule should upon the principle of stare decisis: govern oiir determination of this appeal.

The defendant urges that this is a judicial act, because under section 164 of the Code of Criminal Procedure, if the magistrate of the town before whom the defendant is directed to be taken is absent or unable to act, the person executing the warrant is required to take him to the nearest accessible magistrate. His argument, as I understand it, is that because under certain conditions the defendant .would have jurisdiction to try this case, the imprisonment under the warrant made returnable to himself created no civil liability against him. The difficulty with his argument lies in the fact that while, in case of the incapacity or absence of the magistrate, of the town in which the crime was committed, the constable might, under some circumstances, have been authorized to bring the plaintiff before the defendant for trial, there is no authority to which I am referred which .authorized the defendant to issue his warrant returnable before him for this crime committed in the town of Mayfield. The warrant then, unauthorized by law, never gave to the -defendant jurisdiction over the plaintiff. The proceedings were ooram non judice, and the defendant must be held civilly liable for the imprisonment which he has wrongfully caused.

The judgment should be affirmed.

All concurred, except Houghton, J., dissenting in opinion, in which Chester, J., concurred.

Houghton, J. (dissenting):

I think this judgment should be reversed instead of affirmed.

The defendant as magistrate had jurisdiction to issue the warrant in the first instance. The sufficiency of the information laid before him, that the defendant had committed the crime of cruelty to animals, in the town of Mayfield, which was within his county, is not questioned. His jurisdiction as justice of the,peace extended, so far as. issuing the warrant was concerned, throughout his county. Subject to the power of removal, a Court of Special Sessions has in the first, instance exclusive jurisdiction to hear and determine the crime of cruelty to animals. (Code Crim. Proc. § 56, subd. 27.) The failure-of the warrant to direct that the defendant, when arrested, be taken before the nearest magistrate of the town in which the crime was committed, did not, I think, render the warrant void. It was a mere irregularity. It was sufficient to protect the officer making the arrest. If the defendant had in fact been taken before the nearest magistrate of his town and there tried and convicted, I apprehend he could not have reversed his conviction because of this omission in the war-, rant. The requirement of section 699 of the Code of Criminal Procedure, that when a defendant is brought before a magistrate the charge against him must be distinctly read and he must be required, to plead thereto, is as mandatory and vital to the interests of a person charged with crime as is the requirement of section 151 as to defendant being taken before a magistrate of the town in which the crime was committed; and yet where the charge was not read or reduced to writing it was held that the judgment of conviction -was not void because of such omission. (People v. Carter, 88 Hun, 304.)

The defendant as magistrate having jurisdiction of the subject-matter, and the warrant not being void but voidable only, the false imprisonment, if any, was the result of compelling the plaintiff as defendant in the criminal action to submit to trial before himself and the pronouncing of the judgment of conviction against him. '

Conceding that the defendant had no jurisdiction to hear and determine the criminal charge, it seems to me that his determination that he had was simply a judicial error for which no action will lie. I can see no difference in principle between this case and that of Austin v. Vrooman (128 N. Y. 229). In that case plaintiff was charged .with supplying diluted milk to a butter manufactory. When arraigned before the defendant as magistrate he pleaded not ^guilty, waived examination and offered to give bail to the grand jury, This was a privilege which he had, and upon doing which the magistrate was divested of further jurisdiction. The magistrate, however, refused bail and proceeded to try the plaintiff and sentenced him to imprisonment. This conviction was reversed on the ground that the magistrate should have accepted bail and have proceeded no further. An actio'n for false imprisonment was brought. It was held that the magistrate erred in further proceeding with the cause, but that it was an error in a judicial determination made in a case of which he had jurisdiction, and that he was protected from a civil action with respect to it. So in the case at bar the defendant magistrate had jurisdiction of the subject-matter, and of the person of the plaintiff to the extent, at least, in case he was brought before him to direct that the officer take him before a magistrate of the town of Mayfield., If this had been done the plaintiff would have had no 'cause for complaint. Instead, the defendant judicially determined that he had jurisdiction to hear the case. This was error, "but no greater than the error in the ease above cited, where the magistrate was divested of jurisdiction because of the offer to give bail to appear before the grand jury. In both instances there was no jurisdiction to hear and determine the case, but the determination Of whether or not there was, was a judicial determination for an erroneous decision of which no liability arises.

The case of Reynolds v. Orvis (7 Cow. 269) is clearly distinguishable from the present one, in that it was there held that the arrest was upon a void process because not properly executed. Here the process was not void, but only irregular; hence the judgment was erroneous and should be reversed.

Chester, J., concurred.

Judgment and order affirmed, with costs. 
      
       See R. L. 1813, chap. 34 (3 R. L. 193).— [Rep.
     