Year: 1866

The Writ OF Habeas Corpus-Powers or


the City Judge.


SUPREME cOURT-GENERAL TERM.


Before Judges Barnard, p J.. Ingraham and Suther-


land.


The People er ra Michael Ryan vs Abram D. Rus
sell, Cay Judge.-rhe City Judge of the city OF New
York. by the creating his Office, clothed with all
the judicial powers vested law the Recorder OF the
city Chap 2O5 Laws of 1850. A and was directed
by the section TO perform and discharge all judicial
duties imposed upon such Recorder concuently with
him. The Recorder by statute vested with the Of
Supreme Court Commissioner Il r. s., 2s1. sec 3ol
returnable before himself and TO take such proceedings
upon return TO the writ as one authorized by the
to sdjadss V q discharge Of the party Imprisoned or
not, as he shall finally determine q r. s., $50,
SEQ 49, The question presented By the appeal papers IS
beas corpus II Is claimed under the authority OF Yates
lansing Is J. R., 2s2 that the act Of allowing such
been followed BY this court in Martin Nash Cle Alb
botts Rep, 2sl that therefore the City Judge had


Of the Yates s
sing did not arise under the present statutes In relation
s Ss as9
should deny allow any writ OF habeas corpus by this
act required % be granted being applied for as aforesaid
the casncsllor @ under The nfsh section OF the same
Supreme Court which imposed equal penalty
for such remprsoning II was held that the Chancellor
was not liable that the act for which the action was
brought was Judicial and no action would be for judi
court the Chief Justice does say that he allowance OF
ton to the character in which judge allowed writ
In vacation not before the court, the
at all involved In the decision Of the question which
presented by that think under the present stat
ute II may well be questioned II the allowance Of the writ
OF habeas corpus ministerial Tho OF the
petition prescribed, and the exceptions Of those
classes Of persons given by statute who cannot prose
oute it; copy Of the paper under which restraint Is
made DO annexed unless excuse be made for its
omission Tho officer may determine the question
whether he will allow the writ or not That he is made
responsible 10 the party applying for an erroneous de-
cson true. So the Supreme Court Judge, either at
Chambers Special Term So are all courts or officers
who have power 10 allow the writ but 1t seems 70 me
that tho fact Of responsibility for error does not deter
mine the character Of the act done. II Is judicial II IL
bc the exercise OF an authority he possesses as Judge
which he may may not exercise he shall determine
tho action TO be legal not II will thus be seen that
is of question IL the OF Yates Lansing 10
authority the Of Martin Nash upon the point
corpus ministerial act under the statute as II now
stands but think the City Judge has jurisdiction to
allow these writ whether the allowance Of them s min
iseria judicial Ho is given the same judicial power
as the Recorder After the writ Is allowed and the
imprisoned person Is brought before the officer he
Is to discharge the bail and remand him as he shall be
advised and no action penalty is given for what he
shall then do refuse 10 do" Yates Va Lansing 5
r., 2s2 the power 10 hear and determine this matter
is judicial The Recorder has this power II the ex-
ercse Of judicial power given by law TO the City Judge
requires the doing of necessary ministerial act TO mi


ate such proceedings, he may do such act The City
Judge has, therefore, power to allow the writ but as he
may refuse, II is discretionary with him whether be
allows not, the remedy is not by mandamus. The
writ Of mandamgs when s 70 70 udca "a SscS
upon the matter before III but there s no power TO d.
him how 10 decide That rests entirely IN the dis
decide in this case direct him TO alter his de-
cision.