18 N.Y.S. 290 | N.Y. Sup. Ct. | 1892
Judgment was obtained by defendant in the supreme court-against plaintiff, a resident of Rensselaer county, on February 7, 1887, and entered in Albany county, where defendant resided. Execution was issued upon said judgment in Rensselaer county, and returned unsatisfied to the Albany county clerk’s office. On January 15, 1890, the recorder of the city of Albany made an order in said action in supplemental proceedings requiring plaintiff to appear before a referee in Rensselaer county to be examined. Plaintiff failing to appear, the recorder issued an order requiring him to show cause at chambers in the city of Albany why he should not be punished as for contempt. Plaintiff appeared, and objected to the jurisdiction of the recorder, who made an order adjudging him in contempt, under which a warrant was issued to the sheriff of Rensselaer county, by virtue of which plaintiff was arrested and imprisoned. This action was then brought for false imprisonment. The plaintiff obtained a verdict, the court on the trial holding that the recorder had no power to make the order under which plaintiff was imprisoned. The learned judge who presided at the trial after-wards, on a motion for a new trial, examined the question involved carefully, and wrote an opinion in which he adhered to his views expressed on the trial. He held, under the authority of the ease of Hayner v. James, 17 N. Y. 316, that the legislature could confer upon the recorder of the city of Albany the power granted by section 10, c. 150, Laws 1849, as amended by section 10, c. 284, Laws 1872, to be exercised, however, only in the city of Albany. A statute conferring a similar power upon the recorder of Troy which was considered in the case of Hayner v. James, supra, expressly limits the power of the recorder to act “ within said city.” No such limitation is contained in the acts of 1849 and 1872, supra, as to the recorder of Albany. But the learned justice in the court below was of opinion that such limitation is to be implied, and that the act does not extend his jurisdiction to the county of Rensselaer. Prior to the adoption of the constitution of 1846, the recorder of the city of Albany, by virtue of his office, was a supreme court cornmis*iojier,.and as such exercised the powers of a judge of the supreme court at
But the appellant claims that the cases above cited, and similar authorities, do not apply here, because in each of those cases the court whose jurisdiction was questioned was created and established after the adoption of the constitution, while the recorder’s court existed prior to the constitution, and his powers were continued by the provisions of the constitution that “all local courts, established in any city or village, shall remain until otherwise directed by the legislature, with their present powers and jurisdiction.” The answer is that the recorder’s powers as a supreme court commissioner was not continued by the above-quoted provision, being taken away from the recorder by the express language of article 14, § 8. As above attempted to be shown, when the act of 1849 was passed, the recorder, by the constitution itself, was-divested of all power as supreme court commissioner, being then a mere local officer, with local jurisdiction, and having no power as a justice of the supreme-court at chambers. It makes no difference that at some former time the recorder was a supreme court commissioner. He was not in 1849. , The act of 1849 did not then continue an existing power in the recorder. It conferred upon him a new power. It was equivalent to the creating of a new court, and the cases above cited seem very plainly to apply. We hence conclude that the view taken by the judge at the special term was correct, and that the judgment- should be affirmed, with costs. All concur.