
    (37 Misc. Rep. 404.)
    In re NEWKIRK.
    (Supreme Court, Special Term, Kings County.
    March, 1902.)
    1. Habeas Corpos—Return to Writ—Disorderly Conduct.
    A return to a writ of habeas corpus, stating that relator is held after conviction under a warrant of commitment of a magistrate for disorderly conduct, is defective, as there is no such criminal offense in the Penal Code or other laws of the state as disorderly conduct.
    2. Same—Disorderly Person.
    Where a return to a writ of habeas corpus states that the relator is held under a warrant for “disorderly conduct,” and is defective, in that there is no such offense under the statutes, but it appears that the relator is held as a “disorderly person,” and the commitment states that he has abandoned his wife without adequate support, which brings him within the definition of a disorderly person, under Code Cr. Proc. § 899, the writ of habeas corpus will be dismissed.
    Application of Lambert Newkirk for a discharge on a writ of habeas corpus. Writ dismissed.
    Towns & McCrossin, for relator.
    Alexander McKinney, for respondent.
   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.” Nor is any such offense defined in the city charter, so far as I can find, though the phrase is loosely used there (section 707 et seq.). In the charter of the old city of New York, however, (Consolidation Act, Laws 1882, c. 410), driving or riding a horse through the streets faster than five miles an hour is made a criminal offense there called “disorderly conduct” (section 1448), and in another section (section 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 New 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 define who “disorderly persons” are, viz., persons who abandon their wives, fortune tellers, jugglers, certain kinds of gamblers, and the like (Code Cr. Proc. § 899; City Charter, § 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.  