Moore v. Devoy

37 How. Pr. 18

• Court: The Superior Court of New York City
• Decided: January 26, 1869
• Status: Published

Opinion

Barbour, J.

The defendant had a right to confess the assault and imprisonment charged in the complaint, and avoid liability therefor, by an averment of sufficient facts to constitute a legal justification. But an answer,which, after denying all the facts set forth in the. complaint, alleges that whatever was done by the defendant was done by him as a deputy sheriff, is not only duplex, but the latter allegations are wholly impertinent and irrelevant, and constitute no defense whatever.

Besides, the facts, stated in the answer, that the defendant was a deputy sheriff and that what he did was done in the performance of his duty as such, do not amount to a justification for the alleged assault and imprisonment, in the absence of an averment that he acted under and in pursuance of process duly issued by a proper court or officer or for the purpose of preventing or suppressing a breach of the peace, or of arresting a person whom he had reason to believe tobe a felon in a case where a felony had actually been committeed. Indeed, I am not aware of any instance where a sheriff or other officer can legally arrest, imprison, or assault a man, without due process of law, in which any other citizen may not lawfully do the same thing.

The demurrer must be sustained, with costs to the plaintiff.