
    (105 App. Div. 43.)
    KRAFT v. DE VERNEUIL.
    (Supreme Court, Appellate Division, Fourth Department.
    May 10, 1905.)
    Justices on the Peace—Trial on Sunday—Personal Liability. .
    Where a justice of the peace on Sunday tried and fined an accused for assault in the third degree, he was not personally liable to -the‘ accused for the amount of the fine assessed and paid, in the absence of'’any claim that the justice acted maliciously or that accused objected to' his proceeding with the trial, whether the act of the justice was - within the prohibition of or exception to Code Civ. Proc. § 6, providing that a court shall not be open or transact business on Sunday, except to receive a verdict or discharge a jury, but that the section shall not prevent the exercise of jurisdiction where it is necessary to preserve peace, or, in a criminal case, to arrest, commit, or discharge a person charged with an offense.
    Appeal from Special Term, Erie County.
    Action by Henry Kraft against Henry De Verneuil. From a judgment sustaining a demurrer to the complaint, plaintiff appeals.
    Affirmed.
    The following is the opinion of the court below (Kruse, J.) : .
    The plaintiff seeks to recover the sum of $50, being the amount of a fine paid by the plaintiff, and imposed by the defendant, a justice of the peace, upon a trial and conviction of the plaintiff for the crime of assault in the third degree. The trial and conviction were had on the 23d day of October, 1904, which was Sunday. The plaintiff was sentenced to pay the fine, or be imprisoned until the fine was paid, and it is alleged in the complaint that he was compelled to, and did pay, the fine to the defendant, fearing said imprisonment. The plaintiff contends not only that the trial and conviction were void, but that the defendant is personally liable to him for the amount of the fine so imposed, for the reason that the proceedings were had upon Sunday.
    Section 6 of the Code of Civil Procedure provides as follows: “A court shall not be opened or transact any business on Sunday, except to receive a verdict or discharge a jury. An adjournment of a court on Saturday, unless made after a cause has been committed to a jury, must be to some other day than Sunday. But this section does not prevent the exercise of the jurisdiction of a magistrate, where it is necessary to preserve the peace, or, in a criminal case, to arrest, commit or discharge a person charged with an offense, or the granting of an injunction order by a justice of the Supreme Court when in his judgment it is necessary to prevent irremediable injury or the service of a summons with or without a complaint if accompanied by an injunction order and an order of such justice permitting service on that day.”
    It is contended by the defendant that the offense with which the plaintiff was charged, and for which he was tried and convicted, was of such a character as to permit the trial to be had on Sunday, under the exceptions to the general rule forbidding courts to be open on Sunday contained in the section referred to, relying upon the case of People ex rel. Price v. Warden, 73 App. Div. 174, 76 N. X. Supp. 728, and further contending that in any event the defendant Is not personally liable to the plaintiff, even if it was unlawful to conduct this trial on Sunday.
    Whatever the facts may appear to be as to the precise nature of this crime, or the circumstances under which it was committed and the necessity of exercising jurisdiction by the magistrate under the exception contained in this section, the facts as alleged in the complaint, which, for the purpose of this determination, must be taken as true, do not seem to be such as to bring them within the exception. Assuming, however, that it was unlawful to conduct this trial upon Sunday, yet, the defendant having jurisdiction as a judicial officer of the person of the defendant and of the subject-matter, it would seem that no personal liability was incurred by the defendant in thus unlawfully proceeding to hear and determine the matter on Sunday. There is no claim that the justice acted maliciously, or even that the plaintiff objected to his proceeding with the trial. Where, under such circumstances, a judicial officer in good faith proceeds with the hearing of a matter over which he has jurisdiction both of the subject-matter and of the person, although he proceeds erroneously, and acts even beyond his jurisdiction, his acts are judicial, and he is protected from personal liability. Lange v. Benedict, 73 N. X. 12, 29 Am. Rep. 80; Clark v. Holdridge, 58 Barb. 61; Austin v. Vrooman, 128 N. X. 229, 28 N. E. 477, 14 L. R. A. 138.
    The demurrer to the complaint is sustained, with costs, with leave to the plaintiff to serve an amended complaint within 20 days upon payment of costs.
    
      Argued" before McLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and STOVER, JJ.
    Joseph Schatttier, for appellant.
    Charles L. O’Connor, for respondent.
   PER CURIAM.

Interlocutory judgment affirmed, with costs* on the opinion of Kruse, J., delivered at Special Term.

STOVER, J., not voting.  