88 N.Y.S. 871 | N.Y. Sup. Ct. | 1904
This being an action for false imprisonment, the only inquiry is whether the deposition in pursuance of which the warrant was issued was sufficient to give the justice jurisdiction. If jurisdiction was conferred to issue the warrant, this action is not maintainable even though the justice may have erred in judgment, or if in the subsequent proceedings before him it may have transpired that no crime had in fact been committed. Swart v. Rickard, 148 N. Y. 264.
The plaintiff challenges the validity of the resolution of
Section 184 of the Town Law as far as applicable to this case provides as follows: “ The town board of any town may, by resolution, prohibit the hawking and peddling of goods or produce in public streets or places, or the vending of the same by calls from house to house, without a license.” And section 187 of the Town Law is as follows: “Any person who hawks, peddles, or vends without a license in any town, as required by this article, or contrary to the terms of his license, or who refuses to produce his license on the demand of a peace officer, is guilty of a misdemeanor.”
The deposition under consideration is made on positive knowledge and sets forth all the facts required to bring the case within the provisions of the Town Law above quoted. It states positively that the person complained of committed acts of hawking and peddling teas and other merchandise in the public streets and places of the town1, and of vending the same by calls from house to house without a license, and that the town board had duly prohibited such acts by resolution. It was not necessary to set forth the resolution of the town board in the deposition, but the statement therein contained that the town board had duly prohibited such acts by resolution was sufficient, in my opinion, to confer jurisdiction on the justice to issue the warrant in question. When in the subsequent history of the case the resolution was established by proof, its validity then became a question for the justice to determine judicially. But until the resolution was proved, after the arraignment of the defendant in the criminal action, it was not before the justice for his consideration. If the town board had duly prohibited by resolution hawking and peddling in the public places of the town, and the plaintiff, notwithstanding such
The resolution of the town1 board in terms only applied to nonresidents, but as it was not before the justice when he issued the warrant, it was not essential that the deposition failed to show the nonresidence of Gilbert. According to the deposition the particular acts of Gilbert complained of had been prohibited by the resolution. It is needless in an action like this to consider whether the deposition stated the facts with accuracy, or whether it stated all the facts. It is a sufficient defense to this action that the facts as they were stated in the deposition constituted a crime.
In People ex rel. Sandman v. Tuthill, 79 App. Div. 24, no facts were stated showing .the particular acts which constituted the alleged crime.
In McKelvey v. Marsh, 63 App. Div. 396, the deposition was based on the hearsay statements of another person, and it was therein stated that it had been repeatedly held that some fact or circumstance must appear tending to establish the guilt of the accused, and that an allegation based on information and belief is insufficient.
In Rutherford v. Holmes, 66 N. Y. 368, there was an entire absence of the proof of a prerequisite required by the statute in that case, viz., an oath of the materiality of the testimony of the witness who was committed for contempt in refusing to testify.
In Hewitt v. Newburger, 141 N. Y. 538, there was in the deposition an entire absence of proof that the acts complained of were done maliciously dr willfully, an unlawful intent in that case being a necessary element of the crime, and the facts set forth in the deposition were as consistent with a lawful as with an unlawful intent.
This case is clearly distinguishable from those above referred to. The deposition may be somewhat informal and inartificially drawn, but in determining its sufficiency in a collateral action such as this, great latitude of construction should be allowed. Swart v. Rickard, supra. That it was sufficient to confer on the justice jurisdiction to issue the
Motion for nonsuit granted.
Motion granted.
