36 Barb. 495 | N.Y. Sup. Ct. | 1862
By the Court,
The plaintiff is the principal of a private school-in the city of Brooklyn, and was arrested by one Jeremiah Clark, a policeman of the city, without process, for riding his horse on the sidewalk on Ninth street, between 3d and 4th avenues, in the presence and view of the officer, and in violation of one of the ordinances adopted by the common council of the city. The arrest was made at 5lj o’clock in the afternoon of the 21st of February, 1861. The defendant Benjamin B. McLane is the captain and the defendant John Dufour the sergeant of the metropolitan police force, 8th precinct, in the city of Brooklyn. The plaintiff, immediately upon his arrest, was taken to the station house of the 8th precinct, by officer Clark, and at 6 o’clock in the afternoon delivered to the defendants, who received him into their custody, examined and searched him, and took from his person such money as he had and put him him in a cell, where he was confined until the next morning; at which time he was taken before the police magistrate. He there paid the fine imposed by the ordinance, had his money restored to him and was discharged. His horse, which had been put into the pound and kept during the night, was also restored to him upon his paying the pound keeper the sum of fifty cents. He thereupon commenced his action against the defendants, for the wrong done to his person, alleging the detention and imprisonment by the defendants to have been oppressive and unjustifiable, and without the authority of law. The defendants in their answer set up the breach of the city ordinance, in presence and view of the officer, the plaintiff’s arrest therefor and commitment to them for safe
The city ordinance was produced and proved, and its violation by the plaintiff in presence and view of the officer was not controverted. It also appeared, from the evidence of James H. Cornwall, who was the police magistrate at the time, that the usual hours during which the police courts were open for the transaction of business at the city hall, were from 9 o’clock A. M. to 4 o’clock P. M., during each day. That the witness then resided within the city, at Ho. 101 Clermont avenue, and Justice Blatchley, another magistrate, resided one mile and a half nearer the 8th precinct station house than the witness. The witness also said he was then in the habit of transacting business at the different station houses. The defendants also read in evidence certain general rules made by the Metropolitan Police Board, for the government of the police, rule 15 of which directs that “ all persons who shall be arrested during the time the police courts are directed to be kept open, shall be taken immediately to the police court in the police district to which the policeman who may make the arrest may be attached; and all persons arrested at any other time shall be conveyed in like manner to the police station house of the policeman who may make the arrest.” Buie 28 also directs, that “when a person accused of having committed a felony or misdemeanor is brought to the station house when the police courts are not open, the officer on duty to whom the complaint is made, is only to ascertain from the person preferring it that the act charged constitutes a felony or other offense for which a person can lawfully be detained, and that there is reasonable ground for the complaint against the party ac
The power of the board of metropolitan police to make the regulations referred to was not questioned, upon the argument. The authority given to the members of the police to arrest persons in the act of committing crimes, or accused, upon reasonable and probable cause, of committing crimes, and their detention until an examination can be had before the committing magistrate, is indispensable to the due execution of the criminal law and the protection of the community. The power, however, should be carefully and discreetly exercised, and not extended to acts reprehensible, and which may subject the offender to some measure of punishment, but which are not criminal. There is a wide difference between
Emcrtt, Brown, Scrugham and Lott, Justices.]
The judgment should he affirmed.