#### Oscar W. Hommert, Pl’ff, *v.*Patrick J. Gleason, Def’t.

*(Supreme Court, General Term, Second Department,*

*Filed May 11, 1891.)*

1. Demurrer—Judgment.

An interlocutory judgment sustaining demurrer to complaint, with leave to amend, may provide that in case of failure to so amend the complaint be dismissed “ on the merits.” The final judgment in such a case would he conclusive on the merits, and the defendant is entitled to have it so entered.

2. False imprisonment—Liability op judge por his acts as such.

Plaintiff was arrested and brought before defendant, who is the mayor of Long Island City, who refused to proceed with the examination at that time, hut adjourned the case for twenty-four hours, and held plaintiff to hail. He also refused tó release the plaintiff on his furnishing a bondsman or to accept any hail until after twenty-four hours, and directed that he he locked up until the following day. *Held,*that as the defendant acted in a judicial capacity, he could not he held liable for his acts.

Appeal by plaintiff from a judgment sustaining a demurrer to the complaint, and an appeal by defendant from order striking out the words “ on the merits ” from the interlocutory judgment.

*George A.*Stearns, for pl’ff; *George W.*Stephens, for def’t.

Dykman, J.

The complaint in this action states that the defendant is the mayor of Long Island City, that the plaintiff was arrested by a police officer, charged with a violation of the excise law, and brought before the defendant for examination, and requested to have such examination at once, which the defendant refused, and refused to hear any evidence, and forthwith adjourned the hearing until twenty-four hours thereafter, and held plaintiff to bail in the sum of $100 for his appearance before the *343defendant on the following day. That thereupon the plaintiff procured a bondsman, who duly executed a proper bond, but the defendant refused to release the plaintiff, and stated that he would take twenty-four hours to determine the sufficiency of such bail. That the plaintiff then offered to furnish another bondsman, but the defendant stated he would refuse to accept any bail until after twenty-four hours, and left the room, after having directed that the plaintiff be locked up until the following day. The complaint charges the conduct of the defendant to have been willful and malicious, and with a purpose to injure the plaintiff.

The defendant demurred to the complaint upon the ground that it failed to state a cause of action, and the demurrer was sustained in the county court of Queens county, where the action was commenced, and now the case comes to us on appéal by the plaintiff from the judgment.

It also appears from the record that the interlocutory judgment entered upon the decision sustaining the demurrer provided for a dismissal of the complaint on the merits, provided the plaintiff failed to file and serve an amended complaint and pay the costs within twenty days after the service of a copy of the first judgment. That provision being unsatisfactory to the plaintiff he made a motion to strike out the words “on the merits,” and the motion was granted, and the defendant appeals from that order.

This last order is erroneous. If the plaintiff failed to avail himself of the privilege extended to him and final judgment was entered upon the demurrer in favor of the defendant it was final and conclusive upon the merits, and it was the legal right of the defendant to have it so entered.

Upon the main question our conclusion is in favor of the judgment.

The defendant, as mayor of Long Island City, was by virtue of his office a magistrate, Code of Criminal Procedure, § 147, subd. 7, and as such was clothed with judicial authority to conduct examinations upon criminal charges. Same Code, § 188. When, therefore, the plaintiff was brought before the defendant upon an arrest, he acquired jurisdiction of the person and the subject matter, and what he did was done in the discharge of his judicial functions, and it is elementary law that no judge or magistrate can be held responsible in a civil action for a judicial determination, however erroneous. *Weaver*v. *Devendorf,*3 Denio, 117; *East River Gas Light Go.*v. Donnelly, 93 N. Y., 557.

It appears therefore upon the face of the complaint that the defendant acted in a judicial capacity in what he did; he is entitled to the protection which the law affords to all judicial officers in the performance of the duties of their office, and cannot be made liable in this action.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to amend the interlocutory judgment by striking out the words “on the merits ” should be denied, with ten dollars costs, and the judgment appealed from should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.