Smith, J.:
The charter of the city of Gloversville (Laws of 1899, chap. 275, § 10) provides for the election of two justices of the peace, and by section 35 of that act it is provided that “ the justices of the peace of the-city of Gloversville shall have the same power, duties and jurisdiction, the same fees and compensations, and be subject to the same [277]*277liabilities as if the city of Gloversville were a town in the county of Fulton, and they were justices of the peace thereof; except that they shall have no jurisdiction in any criminal action or proceeding or special proceeding of a criminal nature, other than a bastardy proceeding, for or on account of any offense committed or charged to have been committed within said city, except as otherwise provided herein in the case of the absence or inability or disability of the recorder.” By section 56 of the Code of Criminal Procedure Courts of Special Sessions, except in the city and county of New York and the city of Albany, are given in the first instance, subject to a certain power of removal, exclusive jurisdiction to hear and determine charges of misdemeanors, committed within their respective counties, in certain cases, among which is specified cruelty to animals or children. By section 655 of the Penal Code a person is declared guilty of a misdemeanor who cruelly beats or unjustifiably injures an animal, whether belonging to himself or to another. By section 151 of the Code of Criminal Procedure is provided the form of a warrant to be issued by a magistrate upon a complaint. In that section it is provided: “ The warrant must direct that the defendant be brought before the magistrate issuing the warrant, or if the offense was committed in another town, and is one which a Court of Special Sessions has jurisdiction to try, or which a magistrate has jurisdiction to hear and determine, he must direct that the defendant be brought before a magistrate of the town in which the offense was committed.”
The complaint presented to the defendant showed sufficient cause for the issuing of a warrant for the arrest of the plaintiff. The warrant, however, made returnable to himself was clearly in excess of his authority and in violation of the provisions of the Code of Criminal Procedure. The offense having been committed in the town of Mayfield and not within the city of Gloversville, the warrant should have been made returnable to a justice of the peace within the town of Mayfield. Upon this warrant, issued without authority, the plaintiff was brought before the defendant, and, although objecting to the jurisdiction of the defendant, was tried, convicted and imprisoned by sentence which defendant pronounced. He has been deprived of his liberty by process issued by the defendant without authority and which was void. For this unlawful [278]*278imprisonment the defendant is clearly liable, unless he be excused by reason of his judicial piosition and because his act in issuing the warrant was a judicial act for liability for which the law, through public policy, exempts a public officer.
In Bigelow v. Stearns (19 Johns. 39) the head note reads: “If a court of limited jurisdiction issues process which is illegal'; or if a court, whether its jurisdiction be limited or not. holds cognizance of a cause, without having gained jurisdiction of the person of the defendant, by having him before them, in the manner required by law, the proceedings are void. And in the case of a limited and special jurisdiction, the magistrate attempting to enforce a proceeding founded on any judgment, sentence or conviction, in such a case, is a trespasser.. * * * Whenever a new power is conferred on a justice of the peace, he must proceed in the.mode prescribed by the statute. Where the act
In Reynolds v. Orvis (7 Cow. 269) the defendants, as justices of the peace, had issued a warrant, directed to any constable of the county, and had delivered it to a constable of a' town other than that in which the plaintiff, a claimed pauper, resided. The plaintiff was arrested and brought before the justices, who examined him and made the order of removal which was" executed. By section 7 of chapter 78 of the Revised Laws of 1813 (1 R. L. 280, 281) a warrant for the examination of a pauper was required to be directed to a constable of the city or town where the pauper resided. But it could only be executed by a constable of the town where the pauper resided. In that case it was held that while the justices had authority to issue the warrant, because they delivered it to a constable of a town other than that in which the pauper resided and proceeded upon an arrest made by such constable of such other town, they were liable for the false imprisonment. It was there held that the justices had no jurisdiction of the. process [279]*279and of the person of the defendant, and that the matter was coram, non judice, and the acts of the justices therein were held to be unlawful and to constitute a false imprisonment of the plaintiff. In the opinion in that case it is said: “The doctrine advanced is supported by the case of Bigelow v. Stearns (19 John. 39). It is there laid down that if a court of limited jurisdiction issues process which is illegal; or if a court, whether its jurisdiction be limited or not, holds cognizance of a cause without having gained jurisdiction of the person of the defendant, by having him before them in the manner required by law, the proceedings are void. In that case Chief Justice Spekcer observed, I consider it perfectly well settled, that to justify an inferior magistrate in committing a person, he must have jurisdiction, not only of the subject-matter of the complaint, but also of the process and the person of the defendant.’ ” In Blythe v. Tompkins (2 Abb. Pr. 468) Mr. Justice Balcom, at Special Term, held : “A justice of the peace acts ministerially in issuing and delivering a criminal warrant to an 'officer to be executed. If such warrant is not valid on its face, the justice who issues and the officer who executes it are liable for assault arid battery and false imprisonment at the suit of the person arrested upon it.”
It is undoubtedly true that, for an error of judgment in performing a judicial act, a judicial officer is not responsible civilly. For an erroneous determination that the facts stated in a complaint are sufficient to constitute a crime he is exempt from liability because the act is judicial. If, however, the facts be stated only upon information and belief, it is held that that is not a statement of facts sufficient to call for the exercise of judicial judgment, and for the issuance of a warrant upon such complaint a justice is held liable in a civil action. (McKelvey v. Marsh, 63 App. Div. 396.)
The cases are not entirely in accord in defining the border line beyond which a judicial officer cannot go without subjecting himself to civil liability. Some confusion has arisen also in the statement of the law as applied to actions against the judicial officer, and as applied to actions against the executive officer who executes the warrant which the judicial officer issues.
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Smith, J.:
The charter of the city of Gloversville (Laws of 1899, chap. 275, § 10) provides for the election of two justices of the peace, and by section 35 of that act it is provided that “ the justices of the peace of the-city of Gloversville shall have the same power, duties and jurisdiction, the same fees and compensations, and be subject to the same [277]*277liabilities as if the city of Gloversville were a town in the county of Fulton, and they were justices of the peace thereof; except that they shall have no jurisdiction in any criminal action or proceeding or special proceeding of a criminal nature, other than a bastardy proceeding, for or on account of any offense committed or charged to have been committed within said city, except as otherwise provided herein in the case of the absence or inability or disability of the recorder.” By section 56 of the Code of Criminal Procedure Courts of Special Sessions, except in the city and county of New York and the city of Albany, are given in the first instance, subject to a certain power of removal, exclusive jurisdiction to hear and determine charges of misdemeanors, committed within their respective counties, in certain cases, among which is specified cruelty to animals or children. By section 655 of the Penal Code a person is declared guilty of a misdemeanor who cruelly beats or unjustifiably injures an animal, whether belonging to himself or to another. By section 151 of the Code of Criminal Procedure is provided the form of a warrant to be issued by a magistrate upon a complaint. In that section it is provided: “ The warrant must direct that the defendant be brought before the magistrate issuing the warrant, or if the offense was committed in another town, and is one which a Court of Special Sessions has jurisdiction to try, or which a magistrate has jurisdiction to hear and determine, he must direct that the defendant be brought before a magistrate of the town in which the offense was committed.”
The complaint presented to the defendant showed sufficient cause for the issuing of a warrant for the arrest of the plaintiff. The warrant, however, made returnable to himself was clearly in excess of his authority and in violation of the provisions of the Code of Criminal Procedure. The offense having been committed in the town of Mayfield and not within the city of Gloversville, the warrant should have been made returnable to a justice of the peace within the town of Mayfield. Upon this warrant, issued without authority, the plaintiff was brought before the defendant, and, although objecting to the jurisdiction of the defendant, was tried, convicted and imprisoned by sentence which defendant pronounced. He has been deprived of his liberty by process issued by the defendant without authority and which was void. For this unlawful [278]*278imprisonment the defendant is clearly liable, unless he be excused by reason of his judicial piosition and because his act in issuing the warrant was a judicial act for liability for which the law, through public policy, exempts a public officer.
In Bigelow v. Stearns (19 Johns. 39) the head note reads: “If a court of limited jurisdiction issues process which is illegal'; or if a court, whether its jurisdiction be limited or not. holds cognizance of a cause, without having gained jurisdiction of the person of the defendant, by having him before them, in the manner required by law, the proceedings are void. And in the case of a limited and special jurisdiction, the magistrate attempting to enforce a proceeding founded on any judgment, sentence or conviction, in such a case, is a trespasser.. * * * Whenever a new power is conferred on a justice of the peace, he must proceed in the.mode prescribed by the statute. Where the act
In Reynolds v. Orvis (7 Cow. 269) the defendants, as justices of the peace, had issued a warrant, directed to any constable of the county, and had delivered it to a constable of a' town other than that in which the plaintiff, a claimed pauper, resided. The plaintiff was arrested and brought before the justices, who examined him and made the order of removal which was" executed. By section 7 of chapter 78 of the Revised Laws of 1813 (1 R. L. 280, 281) a warrant for the examination of a pauper was required to be directed to a constable of the city or town where the pauper resided. But it could only be executed by a constable of the town where the pauper resided. In that case it was held that while the justices had authority to issue the warrant, because they delivered it to a constable of a town other than that in which the pauper resided and proceeded upon an arrest made by such constable of such other town, they were liable for the false imprisonment. It was there held that the justices had no jurisdiction of the. process [279]*279and of the person of the defendant, and that the matter was coram, non judice, and the acts of the justices therein were held to be unlawful and to constitute a false imprisonment of the plaintiff. In the opinion in that case it is said: “The doctrine advanced is supported by the case of Bigelow v. Stearns (19 John. 39). It is there laid down that if a court of limited jurisdiction issues process which is illegal; or if a court, whether its jurisdiction be limited or not, holds cognizance of a cause without having gained jurisdiction of the person of the defendant, by having him before them in the manner required by law, the proceedings are void. In that case Chief Justice Spekcer observed, I consider it perfectly well settled, that to justify an inferior magistrate in committing a person, he must have jurisdiction, not only of the subject-matter of the complaint, but also of the process and the person of the defendant.’ ” In Blythe v. Tompkins (2 Abb. Pr. 468) Mr. Justice Balcom, at Special Term, held : “A justice of the peace acts ministerially in issuing and delivering a criminal warrant to an 'officer to be executed. If such warrant is not valid on its face, the justice who issues and the officer who executes it are liable for assault arid battery and false imprisonment at the suit of the person arrested upon it.”
It is undoubtedly true that, for an error of judgment in performing a judicial act, a judicial officer is not responsible civilly. For an erroneous determination that the facts stated in a complaint are sufficient to constitute a crime he is exempt from liability because the act is judicial. If, however, the facts be stated only upon information and belief, it is held that that is not a statement of facts sufficient to call for the exercise of judicial judgment, and for the issuance of a warrant upon such complaint a justice is held liable in a civil action. (McKelvey v. Marsh, 63 App. Div. 396.)
The cases are not entirely in accord in defining the border line beyond which a judicial officer cannot go without subjecting himself to civil liability. Some confusion has arisen also in the statement of the law as applied to actions against the judicial officer, and as applied to actions against the executive officer who executes the warrant which the judicial officer issues. It may be if in certain cases this justice had authority to issue this warrant returnable to himself for an offense committed in the town of Mayfield, then his failure properly to determine that this was such a case does not ren[280]*280der him civilly liable. (See Hoose v. Sherrill, 16 Wend. 33.) Such an act would seem to be held to be a judicial determination from liability for which he is exempted. Also, if the jurisdiction were opee obtained of the subject matter and of the defendant, a mistake as-to the extent of the jurisdiction has been held to be a mistake for which the judicial officer is not liable. (Austin v. Vrooman, 128 Y. 233.) In analogy with the rule held in this case it is strongly-urged that inasmuch as a complaint was presented sufficient to authorize the defendant to act, his error in determining the nature'of the warrant which he should issue or where it should be returnable must be deemed a judicial act. The same argument, however, might have been made in the case of Reynolds v. Orris (supra). There, upon a sufficient complaint, the proper warrant was issued but-delivered to the wrong constable. The determination by the. justices of what constable should execute the warrant was certainly no-less a judicial determination than the determination as to where the-warrant should be made returnable; The justices were there held liable civilly as for false imprisonment.. This case has been often cited and never discredited, and in the absence of authorities holding the contrary rule should upon the principle of stare decisis: govern oiir determination of this appeal.
The defendant urges that this is a judicial act, because under section 164 of the Code of Criminal Procedure, if the magistrate of the town before whom the defendant is directed to be taken is absent or unable to act, the person executing the warrant is required to take him to the nearest accessible magistrate. His argument, as I understand it, is that because under certain conditions the defendant .would have jurisdiction to try this case, the imprisonment under the warrant made returnable to himself created no civil liability against him. The difficulty with his argument lies in the fact that while, in case of the incapacity or absence of the magistrate, of the town in which the crime was committed, the constable might, under some circumstances, have been authorized to bring the plaintiff before the defendant for trial, there is no authority to which I am referred which .authorized the defendant to issue his warrant returnable before him for this crime committed in the town of Mayfield. The warrant then, unauthorized by law, never gave to the -defendant jurisdiction over the plaintiff. The proceedings were ooram [281]*281non judice, and the defendant must be held civilly liable for the imprisonment which he has wrongfully caused.
The judgment should be affirmed.
All concurred, except Houghton, J., dissenting in opinion, in which Chester, J., concurred.
See R. L. 1813, chap. 34 (3 R. L. 193).— [Rep.