
    John Burns, App’lt, v. Theodore M. Norton, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 23, 1891.)
    
    Duress—Justice oe the peace.
    Plaintiff was convicted before defendant, a justice of the peace, of the_ crime of assault in the third degree, and was sentenced to pay a fine of $100, and in default of payment to be committed to jail until the fine was paid, not exceeding 100 days. The justice then informed him that he would commit him unless the fine was paid forthwith, and plaintiff then paid the fine, but afterwards demanded the same before it was paid to the county treasurer. Held, that an action to recover from the justice the moneys so paid could not be maintained.
    (Oltw'Jcr. Holdridge, 58 Barb., 61, followed.)
    (Macomber, J., dissents.)
    Appeal from judgment in favor of defendant on trial by the court, a jury having been waived.
    The following facts were agreed upon:
    That the defendant was, on the 5th day of August, 1889, an acting justice of the peace in and for the town of Victor, in the county of Ontario, and was from that time and now is; that on that day John Burns, the plaintiff, was arrested by virtue of a warrant charging him with having committed an assault in the third degree on the person of Julius Madison on the 3d day of August, 1889, duly and regularly issued by the defendant. That the said plaintiff was brought before the defendapt, at his office in the said town, where the defendant was holding a court of special sessions ; that the plaintiff was then, and there charged before the said defendant with having committed an assault on said Madison, in said town of Victor, as charged in said warrant
    That said defendant, as such court of special sessions, arraigned the said plaintiff upon such charge of assault in the third degree ; that the said plaintiff pleaded not guilty and demanded a trial by jury; that on the 22nd and 23d days of August said trial was had and the testimony taken and the case was submitted to the jury, who found the said plaintiff guilty of said assault; whereupon the said defendant, acting as such court of special sessions, in due form, sentenced this plaintiff to pay a fine of $100, and in -default of the payment thereof, to be committed to jail until said fine should be paid, not to exceed 10,0 days.
    That this plaintiff was before the said court, and on the same day paid to, and this defendant did receive from this plaintiff the ;said sum of $100, when this plaintiff was discharged. That this defendant acted in good faith in imposing said fine, believing he had a right to impose $100. That the same defendant afterwards on or about the ■ day of , 1889, paid said sum of $100 into the county treasury of Ontario county. That the defendant refused to pay back to the plaintiff the said sum of $100. That said $100 Was paid by the plaintiff under protest, and to avoid being committed to the jail of Ontario county. That the verdict of the jury was rendered and the sentence imposed at about 11 P. M. of Friday, the 23d day of August. That the plaintiff asked the defendant to pay back the money that night', which the defendant declined to do, saying that he would if he was wrong, but that he thought he was right and had a right to keep it, and that the defendant declared he, intended to commit the plaintiff unless the fine was paid.
    It was also stipulated that the said defendant, as such court of special sessions, had full and competent jurisdiction and authority "to try and sentence said plaintiff for said offense.
    
      The following opinion was filed by the trial judge:
    Adams, J.—IJpon the undisputed facts of this case, there can be no question but the defendant exceeded the jurisdiction conferred upon him as a court of special sessions when he rendered the judgment complained of, and the error on his part was doubtless occasioned by his confounding § 15 of the Penal Code with § 717 of the Code of Criminal Procedure, the latter of which pro vides-for and limits the judgment of a court of special sessions, and was, of course, controlling in this case. It follows, therefore, that an excessive, erroneous and unlawful judgment was imposed upon the plaintiff, and his contention is, that he is thereby entitled to the remedy sought by this action.
    The plaintiff’s counsel bases his right to recover upon the theory that the defendant in passing judgment acted without, jurisdiction, and therefore his act was absolutely-void. In support of this proposition the attention of the court is directed to the celebrated case of the People ex rel. Tweed v. Liscomb, 60 N. Y., 559, which it is contended determines the precise question here presented. It is true that a similar view was taken of the effect of that decision in two instances cited by counsel,' People ex rel. Knowlton v. Sadler, 2 N. Y. Grim., 438; People ex rel Stokes v. Risley, 4 id., 109, in each of which it was held that where the penalty imposed was in excess of that authorized by law, the judgment by which it was imposed was void and the prisoner was entitled to a discharge by habeas corpus. But such a construction is in direct conflict with a decision of the court of appeals, rendered subsequent to that in the case of Tweed, in which it was. held that a judgment in excess of jurisdiction, although void, did not entitle the party to his discharge. People ex reí. Devoe v. Kelly, 2 N. Y. Grim., 437. It is likewise contrary to an adjudication by the general term of this district upon facts identical with those relied upon by plaintiff. Clark v. Holdridge, 58 Barb., 61. In that case, as in this, it was contended that the imposition of a. fine so largely in excess of the amount authorized was as much a nullity as would have been a sentence that the person convicted should be hanged or imprisoned in the state prison, but as was said by Johnson, J., “ this is a. confusion of ideas and principles, essentially and fundamentally different” In the case suggested the punishment inflicted would be different in kind and degree, but here the court having acquired jurisdiction of the person and of the offense, erred in the degree but not in the quality of the punishment contemplated by the statute, and to quote once more from the opinion of Johnson, J., this constitutes “the true distinction between the acts of an inferior magistrate which are coram non judice and void, and those which are erroneous and voidable-merely.”
    In this connection it may be worth while to call attention to a. very obvious distinction between this case and that of Tweed. The only question there considered relates to the right of the court to impose cumulative sentences in a case where a party was convicted of several separate and distinct misdemeanors, identical m character and charged in one indictment, such sentences exceeding in the aggregate what is prescribed by statute as the maximum punishment for one offense of the character charged, and it was held that the power of the court was exhausted when it had imposed the first sentence of the maximum punishment fixed by the statute; that it then ceased to be competent to render, a further judgment in the case, and where the judgment included more than this a party was entitled to his discharge by habeas corpus.
    
    That this was all that was intended to be decided in that case the court is careful to state in a later decision, People ex rel. Woolf v. Jacobs, 661ST. Y., 8, and what is said by way of illustrating the principles enunciated must be regarded as merely obiter. The case of G lark v. Holdridge, supra, was decided prior to the Tweed case, it is true, but in my view of the latter case there is no conflict in principle between them, and until the former authority is expressly overruled I shall feel constrained to follow it, and this course is pursued the more willingly inasmuch as the principle it establishes is not only in harmony with my own views but is likewise supported by authorities so numerous that it would seem “ mere ostentation to cite them. Assuming however that the Tweed case does establish the principle contended for by plaintiff’s counsel, the most that could be claimed for it in this case would be that it authorized the recovery of such portion of the money paid by plaintiff as was in excess of the penalty imposed by statute, which would be the sum of fifty dollars. It by no means follows, however, that if the judgment was void to the extent claimed, it entitles the plaintiff to maintain this action; for as was said in substance by Hale, Oh. J., in Bushell’s case, 1 Mod., 119, while the judgment may be void so far as the plaintiff’s right to be discharged is concerned, it gives him no right of action against the defendant, because he acted judicially, although erroneously. This princiSle was recognized and followed by the supreme court of the hited States in Lange's case, 18 Wall., 163, where it was said that “ the distinctions between void and voidable judgments are very nice and they may fall under one class or the other as they are regarded for different purposes."
    
    If this action can be maintained then one for false imprisonment could be had the sentence been imprisonment for a period in excess of the term prescribed by statute. The court of appeals has said, however, that where a court of superior or general jurisdiction acts judicially, although in excess of its power, it is not liable in a civil action, Lange v. Benedict, 73 1ST. Y., 12, and the same rule has been held applicable to courts of inferior and limited jurisdiction by the general term of this department Kenner v. Morrison, 12 Hun, 204.
    It follows, therefore, in no view of the question presented by the facts of this case, can the action be maintained, and the defendant is consequently entitled to judgment
    
      Charles H. Paddock, for app’lt; Edwin T. Hicks, for resp’t
   Judgment affirmed, on the authority of Clark v. Holdridge, 58 Barb., 61.

Dwight, P. J., and Corlett, J., concur.

Macomber, J. (dissenting.)

This action was brought to recover the sum of $100, claimed to have been collected of the plaintiff by the defendant upon a void judgment and sentence in a criminal case, by means of threats of imprisonment if the alternative money penalty should not be paid.

The facts which were agreed upon at the trial are as follows: The defendant, on the 5th day of August, 1889, being a justice of the peace in Victor, in the county of Ontario, caused the arrest of the plaintiff on a warrant charging him with having committed an assault in the third degree.

On being arraigned the plaintiff pleaded not guilty and demanded a trial by jury. At a subsequent day such trial was had, and the testimony in the whole case was submitted to the jury, who returned a verdict of guilty of assault in the third degree, whereupon the defendant, acting as a court of special sessions, sentenced the plaintiff to pay a fine of $100, and in default of' such payment to be committed to jail until the fine should b& paid, not exceeding 100 days.

A certificate of conviction, embodying such judgment, was made out by the defendant, who declared to the plaintiff that he would commit him to jail unless the fine was paid forthwith. The plaintiff thereupon paid to the defendant this sum of $100 rather than to go to jail, and shortly thereafter demanded the return of such money, upon the ground that the same had been illegally exacted. The defendant acted in good faith, though ignorantly, in rendering such judgment, and believed he had the right to impose the whole of it He afterwards, but after the demand of repayment of him, turned the fine into the county treasury of Ontario county. This action was brought to recover the money refused to be paid to the plaintiff by the defendant.

No doubt, as is conceded in the case, the defendant, as a court of special sessions, had jurisdiction and authority to try the plaintiff for the offense of assault in the third degree, and impose a legal sentence against him upon a conviction. But the judgment rendered by the defendant against the plaintiff was illegal, and no reasonable argument can be made to sustain it The justice’s judgment was limited by law to a fine of not exceeding fifty dolars, or imprisonment not exceeding six months, or both such fine and imprisonment Code Grim. Pro., § 717".

In case of a fine only, the imprisonment, until the fine is satisfied, is limited to one day for every one dollar of fine.

The defendant clearly acquired jurisdiction of the person of the plaintiff and of the offense of which he was charged. In pronouncing judgment, however, he was bound by the statute, and any judgment not warranted by the statute must be deemed to be: void.

The plaintiff was in duress, and the payment by him of the illegal exaction made by the defendant may be recovered in this action, unless the defendant is protected by some fundamental rule of law hedging about a magistrate.

The learned judge, at the trial, has based his decision upon an authority in Clark v. Holdridge, 58 Barb., 61.

The facts in that case were, in many respects, similar to those appearing in this record, save the important exception that in the case before us there was a demand for the return of the money made upon the justice before an action was brought to recover the amount of the illegal fine, and before the moneys had been covered by him into the treasury of the county. This we deem to be an important and far-reaching distinction between the two cases. But, however, this may be, even if the authority relied upon by the judge at the trial were applicable to the facts of this case, yet the decision of the court of appeals rendered in the case of the People ex rel. Tweed v. Liscomb, 60 N. Y., 559, would lead to a reversal of the judgment. In that case it was held that if the record showed that the judgment is not merely erroneous, but such as could not, under any circumstances, or upon any state of facts have been pronounced, the case is not within the exemption of the habeas corpus statute, 2 R. S., 563, § 22, subd. 2, and the applicant was entitled tobe discharged, and that too although the court had acquired jurisdiction of the person of the prisoner and of the subject-matter ; and that the inquiry went further, namely, as to the jurisdiction of the court to render the particular judgment. It Was there held that a judgment in excess of that which by law the court has power to make was void for the excess.

The court, per Allen, J., says : “ With us all punishments are prescribed by statute as well as to character as extent, and a sentence not conformable to law as not warranted by statute, or which is in excess of the legal punishment, is ultra vires, and like every other act, whether judicial or ministerial, done without legal authority, is void. A sentence to imprisonment in the state prison for a misdemeanor would be void, as would a sentence to imprisonment, when only a fine was the statutory penalty. A fine of one thousand dollars for a misdemeanor, unauthorized by law, would not protect an officer in the execution of process for its collection of the property of the condemned, or by detaining the person until the fine should be paid. If a court having jurisdiction of the person of the accused, and of the offense of which he is charged, may impose any sentence other than the legal statutory judgment and deny the aggrieved party all relief except upon a writ of error, it is but a judicial' suspension of the writ of habeas corpus.”

A person whose rights have been thus invaded cannot justly be left without remedy; but what the remedy, is depends upon the circumstances of the case. Suppose, for instance, that the judgment of the special sessions had been, instead of a fine of a hundred dollars, that the defendant be confined in jail for a period of one year. His remedy clearly would have been through a writ of habeas corpus, whereby he would have been discharged as being illegally detained and imprisoned under a judgment which was absolutely void. A fine of a hundred dollars having been imposed with the alternative of one hundred days of imprisonment, the plaintiff cannot be regarded as without a remedy in yielding to the illegal exaction in order to avoid the degradation of imprisonment. It was not, in any legal sense, a voluntary^ payment. His remedy, therefore, must be, not by habeas corpus, lor his body was not imprisoned, but by some other means, for common justice would lead us all to say he ought not to be remediless. Having made a demand for the return of the moneys before the justice had covered them into the county treasury, we think he was in a position to maintain this action.

In the case of the People ex rel. Stokes v. Risley, 4 N. Y. Crim., 109, the relator was convicted in a court of special sessions of the offense of disposing of property covered by a chattel mortgage and adjudged to pay a fine of $250 and stand committed until the fine should be paid, not exceeding one year. On habeas corpus the general term held that the relator should be discharged on the ground that the judgment was void and that by § 717 of the Code of Criminal Procedure the court had no power to render the judgment. See, also, People ex rel. Devoe v. Kelly, 97 N. Y, 212; and People v. Carter, 48 Hun., 165; 15 N. Y. State Rep., 640. In the case last cited the relator was convicted by a court of special sessions for violation of the excise law and adjudged to pay a fine of $100 or be imprisoned not to exceed 100 days. Upon habeas corpus he was discharged upon the ground that, though the justice had jurisdiction of both the person and subject matte, rhis judgment was void.

Under these authorities and for the reasons above stated, the judgment appealed from was erroneous and should have been given to the plaintiff upon the facts found by the court.

The judgment should be reversed, with costs, and judgment ordered for the plaintiff, upon the facts found, for the recovery of the moneys demanded.  