89 N.Y.S. 591 | N.Y. App. Div. | 1904
The plaintiff brings this action to recover twenty-five dollars of the defendant, the police justice of the village of Freeport, it being alleged that “on or about October 18, 1902, IT. J. Raymore deposited with the said defendant the sum of $25 to secure the attendance of Mrs. Ellen McNamara, at a trial before said defendant ; that when the day came for said Mrs. Ellen McNamara to be tried, the said defendant, Archer B. Wallace, did not appear to hold court; that the said Mrs. Ellen McNamara, her witnesses and counsel and the jury were in court; that after waiting more than one hour beyond the time appointed by said defendant to try her and after the jury left, she departed and went to her home, said justice, the defendant in this action, having lost jurisdiction by his failure to appear at the time appointed.” The complaint then alleges an assignment of the interest of H. J. Raymore in the deposit of twenty-five dollars; alleges that a demand has been made upon the defendant for the said twenty-five dollars, and that the defendant refused and neglected, and still refuses and neglects, to pay to this plaintiff said twenty-five dollars, and that “ defendant admitted to this plaintiff that he has parted with the said $25.” The complaint demands judgment for the twenty-five dollars, with interest. The defendant put in a general denial in the first instance, but subsequently demurred to the complaint on the ground
Without holding that the police justice lost jurisdiction of the cause by reason of his failure to appear at the time appointed for the trialj we are of opinion that this judgment should be-reversed on grounds of public policy. “ Police justices have such jurisdiction, and such only, as is specially conferred upon them by statute.” (Code Grim. Proc. § 74.) We find no provision of law permitting a police justice to accept a cash deposit in lien of bail. Section 586 of the Code of Criminal Procedure provides that “ the defendant, at any time after an order admitting him to bail, instead of giving bail, * * * may deposit with the county- treasurer of the county in which he is held to answer or appear, the sum mentioned in the order or commitment; and upon delivering to the officer, in whose custody he is, a certificate of the deposit, he must be discharged from custody.” There is no authority for the police justice to act as the agent of the 'county treasurer in receiving this deposit; the magistrate is authorized to accept bail (Code Grim. Proc. § 557), but when there is a substitute of a cash deposit it must be made to the county treasurer, and it is upon his certifícate that the prisoner is given his liberty. The police justice in the case now before us took this cash deposit by color of his office, and without authority'of law, and under the rule laid down in Eagan v. Stevens (39 Hun, 311) the money belonged to the person making the deposit, and upon demand it should have been returned to him or his assignee, regardless of the result of the proceeding or the presence of the prisoner. It is true that in the case of People ex rel. Gilbert v. Laidlaw (102 N. Y. 588, 592) it was held that -in law the cash deposit belonged to the defendant, and might be applied in payment of the fine imposed, even though the money was, in fact, furnished by a third party, but this rule can have no bearing where the deposit .was made without authority of law and was accepted by the police justice by color of his office. (Eagan v. Stevens, supra, 313.) The police justice, assuming to have authority, took the money of H. JL Eaymore in lieu of bail. This action on his part was wholly void : he came into the possession of the money because he was police jus
The judgment appealed from should be reversed, with costs.
All concurred; Bartlett and Hooker, JJ., in result.
Judgment of the County Court of Nassau county reversed, with costs. ,
