People ex rel. Lanzondoen v. Schirmer — 8 N.Y.S. 76

Majority

p. 76

People ex rel. Lanzondoen v. Schirmer, Sheriff.

(Supreme Court, General Term, Second Department.

December 10, 1889.)

Headnote

Judge—Inability to Act—City Court of Yonkers.

The engagement of the city judge of Yonkers in attending to the removal of his family, of 13 persons, from their summer resort to his home in Yonkers, is an “inability, ” within Laws N. Y. 1881, c. 184, tit. 3, § 8, which makes it the duty of the mayor to designate one of the justices of the peace of the city “ who shall, only in case of * * * inability of the city judge to act, exercise, in the place and stead of the city judge, criminal jurisdiction. ”

Appeal from special term, Westchester county.

The relator, Henry Lanzondoen, was tried for assault and battery in the third degree at the court of special sessions in the city of Yonkers, before a justice of the peace, acting as city judge. On conviction he obtained a writ of habeas corpus, returnable before Mr. Justice J. O. Dykman, at chambers, who afterwards dismissed the proceedings, and ordered that the relator be remanded to the custody of defendant, Frank Gr. Schirmer, sheriff of Westchester county. From this order the relator appeals.

Argued before Barnard, P J., and Pratt, J.

Walter J. Donohue, for appellant. Nelson H. Baker, Dist. Atty., and Wm. W. Scrugham, for respondent.

By the charter of the city of Yonkers, the city judge has exclusive jurisdiction in all cases triable by the court of special sessions, before justices of the peace, in towns. Chapter 184, Laws 1881, tit. 3, § 7. By section 8 of this title it is made the duty of the mayor to designate in writing, to be filed in the office of the city clerk, one of the justices of the peace of the city, “ who shall, only in case of sickness, absence from the city, disability or inability of the city judge to act, exercise, in the place and stead of the city judge, criminal jurisdiction such as is conferred by law upon justices of the peace in towns, during the time such sickness, absence, disability, or inability shall continue.” The mayor designated a justice of the peace under this section, and he tried the relator. It appears that the city judge arrived home from his vacation at about noon of the day of trial. He did not go to the office, and, although the justice of the peace knew of his arrival in the city, held the court for the trial of relator for a criminal offense. It was proven that the city judge was unable to attend, because of his engagement in attending to the removal of his family, which consisted of 12 persons, from their summer resort to his home, in Yonkers. This was a sufficient inability of the city judge to justify the action of the justice of the peace. Inability to act does not alone mean physical inability. If there be a duty of paramount importance, such as sickness in his family, or other contributory causes which prevent his attendance to the official duty, a case is made for the action of his substitute. The order should be affirmed, without costs.