87 N.Y.S. 1022 | N.Y. App. Div. | 1904
These charges are presented by a petition under section 1401a of the charter of the city of New York (Laws of 1901, chap. 466) which provides that a city magistrate or police clerk may be removed for cause, after due notice and an opportunity of being heard, by the Appellate Division of the Supreme Court within the division for which such city magistrate or police clerk was appointed, and are based upon rulings of the city magistrate in discharging persons brought before' him charged with a violation of section 344a of the. Penal Code, which provides, that a person “ who shall have in his possession, knowingly, any writing, paper or document, representing or being a record of any chance, share or interest iii numbers sold, drawn or to be drawn, or in what is commonly called ‘ policy,’ or in the nature of a bet, wager or insurance, upon the drawing or drawn numbers of any public or private lottery, or any paper, print, writing, numbers, device, policy slip, or article of any kind such as is commonly used in carrying on, promoting or playing the game commonly called ‘ policy,’ * * * is a common gambler,” and punishable by imprisonment or fine.
The petition charges that at certain times in the years 1903 and 1904, the specific dates of which are set forth, there were brought before the magistrate a number of persons charged with á violation of section 344a of the Penal Code, and that the said magistrate, sitting as a magistrate in the fifth district Magistrate’s Court
The provisions of section 1401a of the charter of the city of Hew York do not specify the.cases in which this court is justified in removing a city magistrate; but when the charges against a city magistrate are based upon his judicial action, something more is necessary, to justify the charges, than a statement that the magistrate made an error in "applying legal principles to the decision of cases before him. The magistrate held that, to justify him in holding a prisoner accused of a violation of section 344a of the Penal Code, there must be evidence that the policy slips in the possession of the persons charged were'in some way connected with a lottery, and that the evidence before him was not sufficient to show that the papers found upon the person arrested and brought before him had any connection with any lottery or policy drawing.
We are not called upon on this application to express an opinion upon the correctness of the magistrate’s ruling. If it was wrong, it was an error of judgment, and in the absence of evidence that the magistrate did not fairly consider the testimony before him and determine the questions submitted as he thought the administration
The charges are, therefore, dismissed.
Van Brunt, P. J., Patterson, McLaughlin and Laughlin, JJ., concurred.
Charges dismissed.