People ex rel. Ricketts v. Moore — 16 N.Y. St. Rep. 469

Majority

p. 469

The People ex rel. Benjamin Ricketts, v. Dewitt C. Moore, Police Justice, et al.

(Supreme Court, General Term, Third Department,

Filed May, 1888.)

Headnote

1. Certiorari—Where writ is unnecessary.

One of the defendants commenced an action before the other, a police justice of the village of Johnstown, to recover certain chattels. The summons was served and property taken by a constable. Answer was put in judgment finally given for the plaintiff, certain objections being taken on the hearing The defendant brought this certiorari, claiming among other things, that the justice had no jurisdiction to try a civil action. Held, that if this objection were valid then there was no need of a reversal by writ of certiorari as the acts of the justice were void, and contributed no protection to any one acting under them.

p. 470

2. Justices of Peace—Provisions relating to—Appeal from judgment of.

Held, that if the justice had jurisdiction, his determination was reviewable by appeal under the provisions relative to appeals from judgments of justices of the peace, and that if his jurisdiction extended to certain cases of which this was not one, that question might be determined on an appeal from his judgment.

F. B. Towman, for relator; Anibal & Murray, for Mary Jane Moore.

Dewitt C. Moore is police justice of the village of Johnstown.

Mary Jane Moore commenced, (or claims to have commenced) before him a civil action against the relator, to recover certain chattels. The summons was served and the property taken by a constable. Thereupon an answer was put in and judgment was finally given for the plaintiff. Objections were taken on the hearing, sufficient to raise the point here presented.

The defendant then brought this certiorari.

He claims, first, that the police justice had no jurisdiction whatever to try a civil action, or at least, only when the village is a party. Second, that if he had jurisdiction, there were errors in the proceeding. Third, that the proof did not sustain the cause of action.

As to the first ground, the relator does not claim that there was simply no jurisdiction of his person, or that there was any defect in the process. But he claims that the police justice had no jurisdiction whatever, to hear or try any such case; that he was really nothing but a private individual illegally assuming to actas a justice of the peace. Now if this be so, the acts of the police justice are void and contribute no justification to any one acting under them.

All persons concerned in executing them are considered as trespassers. Elliott v. Peirsol, 1 Pet., 328 ; Chemung Canal Bank v. Judson, 8 N. Y., 254 ; Bigelow v. Stearns, 19 Hun, 39 . There is no need of any reversal by writ of certiorari, any more than there would be need of such a writ to reverse the acts of any trespasser.

As to the second and third grounds above stated, if the police justice had jurisdiction, then it is the jurisdiction of the justice of the peace, according to the statutes which are cited by the parties. If he has the jurisdiction of a justice of the peace, then the provisions for appeals from judgment of justice of the peace must apply. It is not to be supposed that the jurisdiction of justice of the peace was given him and that his judgments were not to be reviewed by appeal as in similar cases before justices of the peace.

An appeal has already been taken in accordance with this view, and is pending.

If the police justice has this jurisdiction of a justice of the

p. 471

peace in certain specified cases only, and the present is not one of those cases, then, as an appeal has been taken to the county court, it will be for that court to decide whether it can reverse the judgment, or whether it must dismiss the appeal, and leave the party aggrieved to his remedy by action. We do not pass in that question. We only say that, if the proceedings can be reviewed, they should be reviewed as proceedings before a justice of the peace. And if the police justice was without jurisdiction, certiorari is not needed, even if it might lie. In our discretion, then, we think that the certiorari should be quashed, but without costs.

The certiorari against the same defendant in which Samuel Loucks is relator was brought to review summary proceedings to remove a tenant. The same views apply, and the same decision is made.

In each case certiorari quashed without costs.

Landón and Ingalls, JJ., concur: