People v. Callahan

New York Court of Common Pleas

People v. Callahan

7 Daly 434

CourtNew York Court of Common Pleas

DecidedJanuary 9, 1878

StatusPublished

Cited by2 cases

This text of 7 Daly 434 (People v. Callahan) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Callahan, 7 Daly 434 (N.Y. Super. Ct. 1878).

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Opinion

Joseph F. Daly, J.

Coles sued Hannegan in the District Court upon a claim for goods sold and delivered. The action was commenced by a warrant of arrest upon the ground that the debt was fraudulently contracted. The defendant was arrested and brought into court; no motion was made.to discharge the warrant; issue was joined as to the debt and judgment rendered in favor of the plaintiff for •■$180, the amount of the claim, and $17 50 costs; the plaintiff asked the justice to state in the judgment and enter in the docket that the judgment was one wherein the defendant was subject to arrest and imprisonment, which the justice refused to do, and the plaintiff excepted. The plaintiff now applies for a mandamus to the justice to compel him to make the statement requested, and"which is required by the statute in order to authorize an execution against the person in a case where an order or warrant of arrest has been issued and is not vacated.

I am not required here to decide whether the justice decided correctly in refusing to make his judgment as requested by plaintiff; for the reason that this is not the tribunal to review the ruling of the officer. The statement by a justice that the defendant is subject to arrest is part of his judgment; he must pass upon that question with the other questions in the case and render judgment accordingly. His act is a judicial and not a ministerial one in deciding and stating as the statute requires. (Carpentier v. Willett, 31 N. Y. 90; reported more fully in 28 How. Pr. 225.) If the jus[436]*436tice decides that the defendant is subject to arrest his decision is the subject of review upon appeal. (75.) Conversely, if he pass upon the question and decide the other way the plaintiff may appeal. This court cannot order a judgment one way or the other by mandamus. Besides, after rendering his judgment the justice is functus officio, and a subsequent decision and entry on his do cket that the defendant is subject to arrest would be void. (Carpentier v. Willett, supra.)

Application denied with costs.

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Joseph F. Daly, J.

Coles sued Hannegan in the District Court upon a claim for goods sold and delivered. The action was commenced by a warrant of arrest upon the ground that the debt was fraudulently contracted. The defendant was arrested and brought into court; no motion was made.to discharge the warrant; issue was joined as to the debt and judgment rendered in favor of the plaintiff for •■$180, the amount of the claim, and $17 50 costs; the plaintiff asked the justice to state in the judgment and enter in the docket that the judgment was one wherein the defendant was subject to arrest and imprisonment, which the justice refused to do, and the plaintiff excepted. The plaintiff now applies for a mandamus to the justice to compel him to make the statement requested, and"which is required by the statute in order to authorize an execution against the person in a case where an order or warrant of arrest has been issued and is not vacated.

I am not required here to decide whether the justice decided correctly in refusing to make his judgment as requested by plaintiff; for the reason that this is not the tribunal to review the ruling of the officer. The statement by a justice that the defendant is subject to arrest is part of his judgment; he must pass upon that question with the other questions in the case and render judgment accordingly. His act is a judicial and not a ministerial one in deciding and stating as the statute requires. (Carpentier v. Willett, 31 N. Y. 90; reported more fully in 28 How. Pr. 225.) If the jus[436]*436tice decides that the defendant is subject to arrest his decision is the subject of review upon appeal. (75.) Conversely, if he pass upon the question and decide the other way the plaintiff may appeal. This court cannot order a judgment one way or the other by mandamus. Besides, after rendering his judgment the justice is functus officio, and a subsequent decision and entry on his do cket that the defendant is subject to arrest would be void. (Carpentier v. Willett, supra.)

Application denied with costs.

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Bluebook (online)

7 Daly 434, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-callahan-nyctcompl-1878.

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