#### Howard S. Starrett, Plaintiff, *v.*Maurice E. Connelly, Defendant.

(Supreme Court, Kings Special Term,

January, 1912.)

Jurisdiction — Nature of action as affecting jurisdiction.

False imprisonment — Actions for — Pleading.

Where inferior courts or judicial ofíicérs act without jurisdiction the law does not protect them.

*231By express statutory provision (Laws of 1910, chap. 659, § 31) a city magistrate of the city of New York has not jurisdiction to try a defendant charged with the misdemeanor of cruelty to animals in violation of section 185 of the Penal Law where the defendant, upon being brought before him, interposes a plea of “Not guifty.”

A complaint in an action for false imprisonment which alleges that plaintiff upon being brought before defendant, a city magistrate of the city of New York, upon a charge of cruelty to animals in violation of section 185 of the Penal Law, pleaded “ Not guilty;” that his examination was adjourned to a certain day on which he was tried, convicted as charged and sentenced to pay a fine and to be confined in the county jail for twenty days and that he was so confined three days, states a cause of action; and a motion by defendant for judgment on the pleadings will be denied.

Motion by defendant for judgment on the pleadings.

*J.*Edward Murphy, for defendant, for motion.

Rasquin & Rasquin (Rolland R. Rasquiii, of counsel), for plaintiff, in opposition.

Stapleton, J.

This is a motion by defendant for judgment on the pleadings.

The pleadings presented for examination are a complaint and a demurrer.

The demurrer is interposed upon the ground that the facts stated in the complaint do not constitute a cause of action.

The action is for damages for false imprisonment.

The defendant was, at the time mentioned in the complaint, a city magistrate of the city of Eew York.

The plaintiff was charged before the magistrate with a violation of section 188 of the Penal Law.

This is a law designed for the prevention of cruelty to animals, and a violation of its provisions is declared a misdemeanor.

*It*appears from the- complaint that, on the tenth day of September, 1910, the plaintiff was arrested bv virtue of a warrant issued by the defendant as >a city magistrate and *232that on that day he was brought before the magistrate upon the charge of having committed that crime; that he pleaded “Not guilty; ” that the examination was adjourned until the 13th day of September 1910; that, on the 13th day of September, 1910, the magistrate proceeded to try the issue thus raised and found plaintiff guilty of the charge of violating section 185 of the Penal Law and sentenced him to pay a fine of one hundred dollars and to be confined in the county jail for a period of twenty days; that the magistrate thereupon issued a commitment to the sheriff of the- county of Queens, and that, pursuant thereto, the plaintiff was confined in the jail from the 13th day of September, 1910,. to the 16th day of September, 1910, and that, as a consequence, he suffered injury and damage.

By section 31 of chapter 659 of the Laws of 191.0, the Court of Special Sessions for the city of New York was vested with exclusive jurisdiction to hear 'and determine all charges of misdemeanor committed within the city, of New York, except charges of libel. The. court, however, by the same section, is divested of authority to proceed with the hearing and determination of .any charge of misdemeanor under certain conditions, the only one of which having any bearing upon the question presented for determination is stated in the act in the following words :■ “ If, before he is held to await trial in the court of special sessions, a person charged with a violation of the motor vehicle law, first offense, or a violation of any law for the prevention of cruelty to animals, in any city magistrates’ court, shall plead guilty.” . *t*'

The source of the defendant’s authority must be found in the statutes of the State, and they will be searched in vain to find any authority' giving him the right to conduct the trial of a defendant charged with a misdemeanor where a plea' of “ Not guilty ” has been interposed. His powers were restricted to conducting an examination.

In the case of McCarg v. Burr, 186 N. Y. 467, 471, the Court of Appeals, in examining a state of facts- practically similar to those under investigation here, said: “ In determining to proceed with the trial of the plaintiff, the de*233fendant was not committing a mere error in ruling witn respect to the extent of his jurisdiction, in which case he would have been acting judicially and would have come under no liability; but he was proceeding without ever having .acquired jurisdiction to try the plaintiff.”

The defendant contends that he brings himself within the immunity extended to the defendant in Austin v. Vrooman, 128 N. Y., 229. In that case the court said, at page 235: “In such a case as .this it must be remembered that the justice had, in the first instance at all events, jurisdiction of the subject-matter, viz.: The inquiry into alleged offenses against the provisions of this act, and the trial of alleged offenders. He also had jurisdiction of the person of the plaintiff. Full jurisdiction had thus been confided to the justice over subject-matter and person at the" time when the plaintiff was' arraigned - before him. In the absence of a proper demand and the giving of sufficient bail it was the duty of the justice, and his jurisdiction continued, to try the accused. This would seem to be a case where, jurisdiction having been attached, the decision of the justice to try the plaintiff was only an erroneous exercise of such jurisdiction. It is unlike the case where jurisdiction has never been conferred aixd the justice decides to exercise a power that he does noit and never did possess.”

It appears to me that the facts alleged in the complaint reveal that the case complained of in plaintiff’s pleading is one where jurisdiction to try the plaintiff was never conferred and the magistrate assumed to exercise to plaintiff’s harm power he did not and never did possess.

In Cooley on Torts, second edition, at page 489, the declaration, which is amply sustained by authority, is made that “ It is universally conceded that when inferior courts or judicial officers act without j urisdiction the law can give them no protection whatever.” See Rutherford v. Holmes, 66 N. Y. 368; McKelvey v. Marsh, 63 App. Div. 396; Warner v. Perry, 14 Hun. 337.

Motion for judgment must be denied.

Motion denied.