In re Vreeland — 15 N.Y. St. Rep. 856

Majority

p. 856

In the Matter of the Petition of John H. Vreeland to remove William H. Thomas, as a Justice of the Peace.

(Supreme Court, General Term, Second Department,

Filed May 14, 1888.)

Headnote

1. Justice of the peace—Removal of by general term of supreme court—What must be shown—Laws 1847, chap. 280.

In order to justify the removal by the general term of the supreme court of a justice of the peace, as provided by Laws of 1847, chapter 280, there must exist in the act or acts complained of, and which are sought to be made the basis of the said removal, clear, palpable and apparent malfeasance in office, or corruption, either apparent on the face of the transaction, or easily inferred therefrom.

2. Same—Mistakes honestly made, not sufficient.

Mistakes honestly made and arising from ignorance as to what the proper steps may be in the course of a given judicial proceeding, either civil or criminal, although they may, under certain circumstances, furnish ground for a civil action against the judicial officer, so making them, can never in the absence of affirmative proof of the corrupt motive and design promoting them, be made use of to affect the summary removal of a justice of the peace or other judicial officer.

3 Same—Refusal of bail not sufficient evidence.

The refusal of bail by a justice of the peace to a person charged with a misdemeanor and who was entitled thereto, under Code Crim. Pro., § 553, and his commitment until the day of trial, is not an act of such a nature as to sustain an application for a summary removal or order of reference in the premises.

William, J. Gaynor, for petitioner.

—In order to justify the removal by the general term, of a justice of the peace, as provided by chapter 280 of the Laws of 1847, there must exist in the act or acts complained of and which are sought to be made the basis of the said removal, clear, palpable and apparent malfeasance in office, or corruption, either apparent on the face of the transaction or easily inferred therefrom.

Mistakes honestly made, and arising from ignorance, as to what the proper steps may be in the course of a given judicial proceeding, either civil or criminal, although they, the said mistakes, may under certain circumstances furnish

p. 857

grounds for a civil action against the judicial officer so making them, can never, in the absence of affirmative proof of the corrupt motive or design prompting them, be made use of to effect the summary removal of a justice of the peace, or other judicial officer. The above conclusions are sustained and set forth in the case of Yates v. Lansing, 5 Johnson R., 282; affirmed, 9 Johns. R., 395.

In the case under consideration the justice, William H. Thomas, was fully justified in issuing the warrant of the 6th of January, 1888, for the arrest of Yreeland for the violation of section 442 of the Penal Code, relating to the dredging of oysters. He was also fully justified, under the language of the said section above referred to, in issuing the warrant on the 12th day of January, 1888, for the arrest of Yreeland. When the prisoner appeared before the justice on the 16th day of January, 1888, he was entitled, as a matter of right, to be admitted to bail under section 553 of the Code of Criminal Procedure, and his commitment, by the said justice until the day of trial, was coram, nonjudice, and unauthorized and extra judicial act, in the case of the person charged with a misdemeanor, but not an act of such a nature as to sustain an application to this court for a summary removal or order of reference in the premises. There is no case, therefore, made out, calling for the justice to answer. Therefore the proceedings are dismissed.

Pratt and Dykman, JJ., concur.