
    Arnold Tanzer, Appellant, v. Matthew P. Breen and Augustus L. Dominick, Defendants, Impleaded with George W. Morgan, Respondent.
    First Department,
    June 3, 1910.
    False arrest.— illegal registration—arrest on void warrant—failure of-magistrate to take proof — State Superintendent of Elections not liable for ordering deputy to make information — when dismissal should hot-. be on merits.
    Tlie State Superintendent Of- Elections sued for the false arrest of an'-elector, who was charged with- illegal registration owing to a mistake of the inspectors in recording the residence given by. him,'is not liable where there is no evidence connecting him with the arrest other' than an admission in his answer - that he directed his. deputy to make an information against the plaintiff, and . to present ah affidavit made by a third person, to the magistrate where the latter exceeded his jurisdiction and issued a void warrant on an information based entirely on information and belief, the sources not given,, without taking proof so as to establish a reasonable ground to believe that the plaintiff was guilty ^ as .required -by.scctions 148 to 150 of the Code of Criminal Procedure. -
    Á warrant" issued on such information without' further proof tending to sho.w the commission of the. crime, is void and the State Superintendent of Elections did not authorize it to be issued.by merely directing his deputy to file an information. ; He had a right to assume that the magistrate would not act without jurisdiction, or fail to comply with the law.
    A dismissal of the complaint against the State Superintendent should not be upon . the merits. '
    Appeal .by the plaintiff, Arnold Tanzer, from a judgment of the' Supreme Court in' favor of the defendant George W:,Morgan, entered in the office of the clerk of the county of Hew York on the 4th day of February, 1909, upon the dismissal of-the complaint-by-direction of the" court''.as to said- defendant, at the close óf the plaintiff’s case on a trial at the Hew York Trial Term.
    ' Laurence Arnold Tanzer, for the appellant. •
    . Martin S. Lynch, for the respondent.
   Dowling, J.:

The plaintiff, a reputable citizen, for over fifty years a resident of Hew York county, and for five years residing in the same election district, presented himself for registration on October 9, 1905, before the inspectors of election of the eighth election district of the twenty-first Assembly district in the city of New York. He duly answered the questions put to him by the members of the board and gave his address correctly as 294 West Ninety-second street, whereupon they properly entered in their official register such answers, including plaintiff’s place of residence. Thereafter, pursuant to law, said inspectors filled out cards purporting to contain a complete and correct copy of the rernixi of each person registered ■in the district and delivered the same to the State Superintendent of Elections, who at that time was the defendant George W. Morgan. Through the carelessness or error of such election officers, the entry opposite the name of another régistered' voter was placed upon the card containing plaintiff’s name, whereby it was made to appear that plaintiff had given his residence as No. 634 West End avenue. This was ¿he residence of Charles W. Turner, and it may fairly be inferred that the error arose through the substitution of the entries ; opposite his name for those opposite the plaintiff’s.

Upon the receipt of such cards, and upon securing the affidavit of Charles W. Turner that the plaintiff did not reside at 634 West End avenue, and without any claim that any serious effort was made to ascertain the real facts, the information verified -by Augustus L. Dominick, a Deputy State Superintendent of Elections and an affidavit. of said Charles W. Turner, were presented to a police magistrate who, solely upon the affidavits, and without any further hearing or investigation, issued a warrant for the arrest of plaintiff which was executed when he appeared to exercise his right of suffrage. Plaintiff’s proper address appeared in the New York City Telephone Directory in use at the time that he registered, as well as in the Directory of the City of New York for 1905; yet it does not appear that any examination was. ever made of the original entry in the registration books of the election district in question, nor that the slightest effort was made to ascertain whether or not there was any reason to believe that a crime had been committed, as á result of which this citizen was subjected to the humiliation of an unjustified arrest.

The question presented by this appeal, however, refers solely to the responsibility of the defendant Morgan to plaintiff for his arrest, for at the close of plaintiff’s case the complaint was dismissed as tohini. There was absolutely no-testimony connecting. Morgan with the acts complained of, but it is sought to hold him responsible upon certain admissions contained in his answer. They are to be found in the paragraphs thereof numbered “ Third,” “ Fifth ” and “ Ninth.” -Therein he admits that' the defendant Dominick acted 'nwia-r lirs direction and authority before, the magistrate .in question in making oath to fna-deposition or information, a copy of which . is annexed to the complaint ail A marked 'exhibit “A,” and in' presenting the affidavit of Turner to said magistrate. He also admits that the magistrate issued a warrant of arrest upon the information and affidavit referred to and delivered the saffie'fo defendant Dominick, and-.that in accordance with his authority as State Superintendent of Elections he duly caused information to be. presented to the said-magistrate for the warrant for plaintiff’s arrest upon a blank form of affidavit which had been caused to be prepared by the. then city magistrate and that the blanks therein wéve filled under his direction,- such information being obtained' from the. cards furnished the defendant Morgan by the inspectors, and that the defendant Dominick.was placed in charge of presenting the . said information ■ to such magistrate and in so doing used such prepared form, or blank. ■

• Under no fair or reasonable interpretation can the admissions in ■ the answer of the defendant Morgan be held to connect him in'any' way with the acts of the. defendant Dominick in the receipt or in the execution of the warrant of arrest after the same had been issued by the- magistrate. It sufficiently appears that the magistrate was without, jurisdiction to issue the warrant for plaintiff’s arrest. All that was before him was the information verified by defendant Dominick, which was only in. effect- an information aiid was insufficient to justify , him in issuing a warrant or to confer jurisdiction upon him. This information verified on a day. in ■ November, 1905,. which is left blank, contained no statement, of fact which justified the issuance of a Warrant. It is based entirely upon information and belief, the sourcés of which aré not given. It , amounted to no more than a statement of Dominick’s conclusion that a crime had been committed.. -

The affidavit .of Turner to' the effect that the plaintiff did not reside at No.- 634 West End avenue did not aid in conferring jurisdiction. .The crime with which plaintiff was charged was the crime of false registration and that could be established only by proof of the residence which he had stated to the board of election officers and of the falsity of such statement. There was no affidavit"presented of any member of the election board,, nor did it appear that Dominick had ever examined the original registration book. His affidavit did not even recite that in making his charge he relied upon a copy of the original item.

The provisions of law applicable to the issuance of warrants as-contained in the Code of Criminal Procedure at that time were as follows: '

“§ 148. Examination of the prosecutor' and his witnesses, upon'" the information. — When'an information is laid before a magistrate, of the commission of a crime, he must examine on oath the informant and prosecutor, and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them.”
“ § 149. Depositions, what to contain. — The depositions must set forth the facts stated by the prosecutor and his witnesses, tending to establish the commission of. the crime and the guilt of the defendant.”
" § 150. In what case warrant, of arrest may be issued. — If the magistrate be satisfied therefrom,.that the crime complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, he must issue a warrant of arrest.”

It is apparent from these provisions that there was before the magistrate in this case no deposition .-within the meaning of the Code, and that the paper sworn to by Dominick was only an iuformation. Upon the filing of such information, it became the duty of the magistrate to examine under oath,Dominick and his witnesses. Upon such an examination it would have appeared at once that Dominick had no knowledge upon which a charge of crime could be based, and the production of any one of the board of election officers, together with the original records, would have demonstrated immediately the error which they had made, and the utter lack of any foundation for a charge against the plaintiff.

The failure of the magistrate to comply with the plain provisions of the law, and his acceptance of an information without probative force as a-' deposition, led directly to the unwarranted, and -unjustified arrest of this plaintiff. ■ But’ whosoever else may be liable-.to the' plaintiff for the damage which, lie has sustained, the defendant ■ .Morgan cannot be charged with such liability..-

It is apparent that in this case the warrant was a nullity: It has been repeatedly held that mere statements upon information and . belief, without giving any sufficient grounds upon which to' base a-belief, -are insufficient to confer jurisdiction on the magistrate. (Blodgett v. Race, 18 Hun, 132; Swart v. Rickard, 148 N. Y. 264; McKelvey v. Marsh, 63 App. Div. 396; Matter of Peck v. Cargill, 167 N. Y. 391; People ex. rel. Livingston v. Wyatt, 186 id. 383.)

The Court of Appeals in People ex rel. Perhins v. Moss (187 N. Y. 418) reiterated this conclusion in. the following language: If the magistrate issued the warrant of arrest without sufficient evidence in the particular-case, the process is a nullity. The question, always, must be whether the magistrate acquired jurisdiction localise an arrest of the person, and the court upon the habeas-corpus, proceeding will look back of his warrant and see if the facts stated in the depositions of the prosecutor and his witnesses support his warrant. (Code Crim. Proc. sec. 149; Church Hab. Corp. sec. 236.) -If-.they did. not furnish, reasonable-and just- ground for a conclusion that the crime.charged had been committed and that the defendant committed it, then jurisdiction was lacking to hold the prisoner in-custody for any time. (Code Crim. Proc. sec. 150.)”

The magistrate being without jurisdiction and his warrant being a nullity, it does not, however, follow that the defendant Morgan is liable because of the acts which lie concededly directed the defendant Dominick to-perform. Under liis ’ admissions in liis answer, all that he did was to direct the latter to present to the- magistrate an ' information in the form prescribed by the board of. magistrates.

The defendant Morgan could not assume that the magistrate' ■ would act without jurisdiction, or would fail to comply with the law. If the magistrate had followed the plain provisions of tlie . Code of Criminal Procedure-.-there-would have been no warrant ■ issued; when he. failed to comply with the law and issued the warrant, which was á nullity, it .does not appear that the defendant Morgan had any knowledge of his action, or authorized-any further steps-upon the part of his deputy Dominick. There is no concession in his answer which justifies the charge that Morgan had any respond sibility for what occurred after the information had been presented. Under these; circumstances the dismissal .of the complaint as to defendant Morgan was correct and should be affirmed.

The judgment, however, improperly recites that the dismissal was upon the merits. This recital should ■ be amended by striking out the words “ on the merits,” and the judgment thus modified affirmed, with costs to the respondent.

Ingraham, P. J., McLaughlin, Clarke and Scorr, JJ., concurred.

Judgment modified as directed in opinion, and as modified affirmed, with costs to respondent,  