Willis v. Havemeyer — 12 N.Y. Super. Ct. 447

Majority

p. 447

Willis, appellant, v. Havemeyer, respondent.

Headnote

To a complaint which charges that the defendant, without cause, caused the plaintiff to be arrested and sent to prison, and detained there until the enforced payment of a sum for his deliverance, an answer which states, in proper form, that the plaintiff was brought before the defendant charged with an offence which the defendant had jurisdiction to try and decide, a trial, according to law, and a decision which he was competent to make, and the issuing of process to enforce it, and that the imprisonment was by virtue thereof, and in execution of such decision, is sufficient.

A reply, which does not controvert" any of the alleged facts requisite to confer jurisdiction on the defendant to hear and determine such offence, or the fact of making the decision and issuing of the process set out in the answer, was demurrable (in Jan. 7,1851) for insufficiency.

When not required by statute, it is not necessary to the protection of an officer of special jurisdiction, that a formal record of his decision should be made and filed. It is enough that his decision was reduced to writing at the time it was made.

When a statute confers authority on such an officer to try a specified class of offences, and punish by fine or imprisonment, it necessarily confers authority to issue process to enforce his judgment.

A reply to such an answer, alleging matters which, if true, would show the decision to be merely erroneous, and not void, is insufficient. While unreversed it will protect the officer making it.

Under the code, it is sufficient, as a pleading, in justifying under the judgment or final determination of an officer, or a court of special jurisdiction, to state that such judgment or determination was duly made. It is only when such allegation is controverted that the officer must establish at the trial the facts conferring jurisdiction.

(Before Oaklet, Oh. J., and.DüER and Bosworth, J.J.)

Heard, February;

decided, March, 1856.

This action came before the court on an appeal, by the plaintiff, from a judgment in favor of the defendant, upon a demurrer interposed by the defendant to the plaintiff’s reply to the defendant’s answer.

The action was commenced on the 28th of December, 1850. The answer was served on the 27th of January, 1851. The reply on the 21st of February, 1851. The demurrer on the 17th of March, 1851.

It was tried before Mr. Justice Duer, in October, 1851. The pleadings are as follows:

p. 448

Complaint.—The plaintiff complains against the defendant, for that the defendant, on or about the sixth day of January, 1849, in the city and county of Hew York, without any justifiable cause, against the law of the land, and against the will of the plaintiff, caused the said plaintiff to be arrested and detained in and about the city hall of said city for some time, and caused the said plaintiff, by a pretended commitment, to be forcibly conveyed' to the city prison of said city, and the said plaintiff was, in consequence of said pretended commitment, confined in the said prison for a considerable period of time, to wit, the period of sixteen hours or thereabouts, and until the enforced payment of a sum of. money for his deliverance therefrom, by means whereof the plaintiff was, during all that time, prevented from following his lawful and necessary affairs and business, which he otherwise would and might have done, was put to great trouble and inconvenience, was deprived of his liberty, and greatly wounded in his feelings, wherefore the plaintiff demands judgment against said defendant for the sum of one thousand dollars, and the costs of this action.

Answer.—The defendant, William F. Havemeyer, for answer . to the complaint of the plaintiff in the above entitled action, on information and belief, denies that he caused the plaintiff to be arrested, as is in said complaint alleged.

And this defendant further, on information and belief, says, that on or about the sixth day of January, 1849, John A. Ricard, who was then a police officer of the city of Hew York, brought a person, who gave his name as Edward Willis, and whom this defendant believes to be the said plaintiff, before this defendant, who was then and there the mayor of the city of Hew York, duly elected and -qualified and acting as such mayor, at the mayor’s office in the city hall of the city of Hew York, and charged the said Edward Willis with having, within the view of the said officer, committed the offence of driving a wagon for the transportation of goods, wares and merchandise, for hire, without being duly ' licensed by the mayor of the city of Hew York, contrary to the ordinances of the mayor, aldermen, and commonalty of the‘city of Hew York, passed May 30, 1848. That this defendant, , by virtue of the power and authority in him vested as such mayor, did then and there proceed to hear, examine into, and determine

p. 449

"upon the said charge; and then and there, on the testimony of the said John A. Ricard, (who was’duly sworn,) and on the confession of the said Edward Willis, which said testimony and confession were reduced to writing, and verified by the affidavit of said Ricard, did then and there convict the said Edward Willis of the offence aforesaid, and this defendant did then and there make up and sign a record of said conviction; and this defendant did then and there declare and deem the said Edward Willis guilty of a misdemeanor, and order and adjudge that the said Edward be fined in the sum of ten dollars, or in default of the payment of such fine that he be imprisoned in the city prison for ten days, which said record of conviction, with the said testimony and confession therein contained, are in the following words, that is to say:—

City and County of New York, ss.

John A. Ricard, Cart Inspector, being duly sworn, deposes and says: that Edward Willis was, this day, driving one horse before a wagon, having goods on it, and driving for hire, without license according to law.

JOHN A. RICARD..

Sworn to before me, January 6th, 1849,

Wm. F. HAvemeyer, Mayor.

Edward Willis states as follows:—Examinant drives a wagon for his father, Anson Willis. I carry goods when I get employed, and receive pay for it. I drive it as an express wagon. I am. twenty years old the 10th of this month.

EDWARD WILLIS.

Taken before me, January 6, 1849,

Wm. F. Havemeyer, Mayor.

The defendant, Edward Willis, being convicted on his own confession, and upon the testimony of John A. Ricard, of driving a wagon for the transportation of goods, wares, and merchandise, for hire, without being duly licensed by the mayor -of the city of New York, contrary to the ordinance of the mayor, aldermen, and commonalty of the city of. New York, passed May 30, 1848, is, pursuant to section 10, article 3d, of an act to .amend an act entitled'

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“ an act for the establishment and regulation of the police of the city of New York, passed May 7th, 1844,” passed May 18th, 1846, by a two-third vote, deemed guilty of a misdemeanor.

It is hereby ordered and adjudged, that Edward Willis be, and he is fined, in the sum of ten dollars, or, in default of the payment of such fine, that he be imprisoned in the city prison for ten days.

New York, Jan. 6th, 1849.

WILLIAM F. HAVEMEYER, Mayor.

And this defendant further, on information and belief, says: That, if the said plaintiff was detained in the city hall for some time, as alleged in said complaint, it was only during a period of' time necessary and proper to conduct the examination and determination of the complaint aforesaid, and no longer.

And this defendant, on information and belief, further says: that the said Edward Willis did not pay the said fine so imposed upou him, but made default therein, after a reasonable time allowed him so to do, whereupon the defendant, acting as such mayor, did, in due form of law, make an order, warrant or commitment, under his hand and seal, by which the constables and policemen of the city of New York, and every of them, were commanded to convey to the city prison of the city of New York, the body of Edward Willis, and deliver him to the keeper thereof and the said keeper was thereby commanded to receive into his custody the body of the said Edward Willis, and safely keep the said Edward Willis in his custody in the said prison, until he shall pay the sum of ten dollars, but the said imprisonment not to exceed the space of ten days, or be thence delivered by due course of law, of which said order, warrant or commitment, the following is a copy, that is to say:—

City and County of New York, ss.

[L. S.] By Hon. William F. Havemeyer, Mayor of the city of New York, to the constables and policemen of the said city, and every of them, and to the keeper of the city prison of the said city:

These are in the name of the people of the state of New York, to command you, the said constables and policemen, and every

p. 451

of you, to convey to the said prison the body of Edward Willis, and deliver him to the keeper thereof, and you, the said keeper, are hereby commanded to receive into your custody, in the said prison, the body of the said Edward Willis, who stands charged before me, on oath of John A. Ricard, with having, on the 6th day of January, 1849, at the city of New York, in the county of New York, also upon the confession of said Edward Willis, with driving' a wagon for the transportation of goods, wares, and merchandise, for hire, without license from the mayor of the city of New York, contrary to the ordinance of the mayor, aldermen, and commonalty of the city of New York, passed May SOth, 1848; he is, therefore, pursuant to section 10 of article 3, of an act to amend an act, entitled “ an act for the establishment and regulation of the police of the city of New York, passed May 7th, 1844,” passed May 13th, 1846, by a two-third vote, deemed guilty of a misdemeanor, whereupon I ordered and adjudged that the said Edward Willis pay a fine of ten dollars, in which he has made default, that you safely keep the said Edward Willis in your custody, in the said prison, until he shall pay the sum of ten dollars, but the said imprisonment not to exceed the space of ten days, or be thence delivered by due course of law.

Given under my hand and seal this 6th day of January, 1849.

WILLIAM E. HAVEMEYER, Mayor.

And this defendant further, on information and belief, says: that the said Edward Willis was only committed to the said prison in compliance with said commitment, warrant or order, and therein detained for a short space of time, but not over the space of sixteen hours, and until he- having paid the said fine of ten dollars, was then discharged.

And this defendant denies that he caused the said plaintiff to be confined in the said prison, as is in said complaint alleged, by any other agency or means, or for any other cause or reason, than those hereinbefore set forth. And this defendant avers, that during all the proceedings aforesaid, he acted in good faith, and in the "faithful discharge of his duty as such mayor, and under and by virtue of the authority with which he, by law, as such mayor, was invested, and according to the statute in such case made and provided, and more particularly under and by virtue

p. 452

of an act, entitled “ an act relative to the powers of the common council of the city of New York, and the police and criminal courts of said city,” passed May 23d, 1833, and also an act to amend an act, entitled “ an act for the establishment and regulation of the police of the city of New York, passed May 7th, 1844,”—passed May 13th, 1846, by a two-third vote,—and in accordance with an ordinance of the mayor, aldermen, and commonalty of the city of New York in common council, passed May 30th, 1848, and an ordinance of the said, the mayor, aldermen, and commonalty of the city of New York convened, passed May 14th, 1839, as by reference thereto will more fully appear. And this defendant further says, that he-had good, sufficient, reasonable, and justifiable cause to convict the said Edward Willis, as aforesaid.

And this defendant, on information and belief, says: that at the time of such offence and proceedings, and for a long time thereafter, the said Edward Willis was a minor, under the age of twenty-one years.

And this defendant further says, that on the said sixth day of January, 1849, and for a long time before, and also for a long time subsequent thereto, he, the said defendant, was mayor of the city of New York, and as such duly elected and qualified. And that he, the said defendant, as such mayor, and not otherwise, on the said sixth day of January, 1849, as it was right and lawful for him to do, on the complaint aforesaid, for the offence aforesaid, being made before and to him as such mayor, did proceed to hear and determine the said complaint, and the said Edward Willis, having been of said offence duly convicted by this defendant, as such mayor and not otherwise, imposed the said fine of ten dollars as aforesaid, as also made the record of conviction aforesaid under his hand, and was right and lawful for him to do. And this defendant further saith, that the said plaintiff did not pay the fine so imposed, but made default therein, whereupon this defendant, as such mayor, and not otherwise, as it was right and lawful for him to do as such mayor, did malee and issue, or cause to be made, issued and delivered to one of the police officers of the city of New York, the order, warrant, or commitment above set forth, which said officer, as this defendant states on information and belief, under and by virtue of the said commitment, on the said 6th day of January, 1849, took and imprisoned the said plaintiff, as it

p. 453

was right and lawful for him to do, and which said warrant or commitment, this defendant believes, is the pretended commitment referred to in this complaint.

And this defendant says, that the said complaint and offence came, and were legally within his jurisdiction, as such mayor as aforesaid. '

And this defendant further says, that some few days prior to the sixth day of January, 1849, the said Edward Willis was charged before this defendant with another and like offence to that above stated and set forth, and this defendant, as it was the first offence on which said Edward Willis had been charged before him, permitted him, in the exercise of his discretion as such mayor, to depart without fine or other punishment, but with an admonition that a second offence would meet with the punishment appointed by law.

And this deponent further says, that he has not any knowledge sufficient to form a belief whether by means of said commitment, the plaintiff was, during all the time thereof, prevented from following his lawful and necessary affairs and business, or whether he might or would have done so, or whether the said plaintiff had any lawful and necessary affairs and business, or whether the plaintiff was put to great trouble and inconvenience, or whether he was deprived of his liberty otherwise, or whether he was greatly wounded in his feelings than is above stated.

And this defendant, for greater certainty, prays leave to refer to all and singular the proceedings on said complaint, and to said testimony, confession, and record of conviction, and to said warrant or commitment, as well as to the "said ordinances of the said, the mayor, aldermen, and commonalty of the city of Hew York.

And this defendant prays judgment in his favor in this action against the plaintiff, for his costs in this action.

The plaintiff, replying to the answer of the defendant, in the above entitled action, says he did not confess that he committed the offence mentioned and referred to in said answer, as is therein alleged.

And plaintiff, as to the allegation of said defendant, that he, said defendant, made up and signed a record of the conviction in said answer mentioned, denies that he, the said plaintiff, has any

p. 454

knowledge or information thereof, sufficient to form a belief in regard thereto.

And plaintiff denies that he committed the offences mentioned and referred to in the answer of said defendant, and that defendant had good, sufficient, reasonable and justifiable cause to convict him, said plaintiff, as stated in the answer.

And plaintiff denies that he has any knowledge or information, sufficient to form a belief, as to whether he, said plaintiff, was detained in the City Hall only during a period of time necessary and proper to conduct the examination, and determination of the complaint, in said answer mentioned.

And plaintiff further says, that, at the time of the alleged commitment of the offence, first mentioned and referred to in the answer of said defendant, he, said plaintiff, was driving a wagon, containing goods, in the lawful and necessary prosecution of the business of an express, established and running between the city of New York and the village of Croton Falls, in said state, and for no other purpose whatever, which driving, as aforesaid, in said lawful and necessary prosecution of said business, was well known to the said defendant, at the time of plaintiff’s said arrest, detention, and conveyance to prison, and which said driving is the driving mentioned and referred to in defendant’s said answer.

The defendant demurs to the reply of the plaintiff, because the said reply, to the defence set up by the answer of the defendant, is insufficient in law, and the defendant states the grounds of his demurrer as follows:—

1. It is admitted, by the plaintiff, that the complaint against the plaintiff was made; that the defendant, as mayor of the city of New York, had jurisdiction of said complaint; that a judicial hearing and determination was had thereupon, and that the plaintiff was. convicted thereof, as alleged in the answer. If it be admitted that the plaintiff was driving an express wagon, as alleged in the reply, this is no sufficient reply, in law, to the answer of the defendant.

2. It does not appear, by the reply, but that the allegation of the plaintiff, in his said reply, that he was driving an express-wagon, was controverted, and proved not to be true, on the hearing of said complaint by said defendant, as mayor, nor but that it

p. 455

was then and there decided, by the said defendant, to be no defence to said complaint.

3. The reply departs from the complaint, and, so far as any cause of action is stated therein, it is a new and different cause of action from that stated in the complaint, and renders it uncertain for what the plaintiff seeks to recover in this action.

Wm. M. Brackett, for plaintiff.

S. J. Tilden, for defendant.

Mr. Justice Duer assigned the following reasons, in support of the judgment, which he ordered:—

Upon an attentive consideration of the pleadings, in this case, and of the law applicable thereto, I am satisfied, contrary to my impressions upon the hearing, that the demurrer to the reply must be allowed. The following are, briefly, the grounds of my decision:

1. That the jurisdiction of the defendant, as mayor of the city is sufficiently alleged in the answer, and that these allegations are not denied in the reply. I must, therefore, consider the original jurisdiction as admitted.

2. That the making up and filing of a record were not necessary to render lawful the subsequent commitment of the plaintiff. The averment of these facts, in the answer, was, therefore, unnecessary, and, consequently, the denial, in the reply, forms an immaterial issue.

3. That, as the defendant had jurisdiction of the offence, of which he convicted the plaintiff', the conviction must be regarded as conclusive, upon all the questions, both of fact and of law, which the judgment of the magistrate, of necessity, involved.

4. Hence, all the issues of fact, which are raised in the reply, must be regarded as immaterial, since they all relate to questions which were necessarily determined, by the defendant, in pronouncing a judgment of conviction.

5. That, however erroneous such determination may have been, it is a complete bar to any action for a false imprisonment, unless the acts of the legislature, and the ordinance of the corporation,

p. 456

under which the defendant acted, must be pronounced unconstitutional and void.

6. That the misdemeanor, of which the plaintiff was convicted, belongs to a class of offences, in relation to which, a summary jurisdiction,'without the intervention of a jury, was known, and universal, in this state, before the adoption of the constitution oí 1779.

7. That, consequently, the acts of the legislature in question, and the ordinance passed by the corporation in pursuance thereof, do not violate any of the provisions of the constitution of 1821, but are fully sanctioned by the construction that has been given to the provisions that are alleged to have been violated, and to similar provisions in the constitution of 1779, not only in repeated acts of the legislature, but by an unbroken series of decisions in the courts of justice.

The defendant is entitled to judgment, with costs; but twenty days are allowed to the plaintiff, to amend his reply, upon payment of the costs of the demurrer and hearing.

The answer contains, first, a denial that the defendant “ caused the plaintiff to be arrested,” as stated in the complaint. This puts at issue allegations of the complaint, which are, of themselves, sufficient to constitute a distinct cause of action.

Second. The residue of the answer, contains matter which is pleaded as a defence to, or justification of the charge, that the defendant “ caused the plaintiff, by a pretended commitment, to be forcibly conveyed to the city prison,” and to be detained there.

The reply must, of necessity, be regarded as applying only to so much of the answer, as sets up a justification of the second cause of action, stated in the complaint.

The substance of the justification is, that the defendant was mayor of the city of New York, and that, as such mayor, upon a complaint made against the plaintiff, of having violated an ordinance of the mayor, aldermen and commonalty of the city of New York, passed May SO, 1848, he investigated the matter, upon the plaintiff being arrested and brought before him, on said complaint, and convicted him of the alleged offence, and adjudged that the plaintiff be fined, in the sum of $10, or that, in default of the payment of such fine, he be imprisoned ten days in the city prison, and that such judgment was duly given.

p. 457

The Code provides, that, “in pleading a judgment, or other determination of a court, or officer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment, or determination, may be stated to have been duly made or given. If such allegation be controverted, the party pleading shall be bound to establish, on the trial, the facts conferring jurisdiction.” (Code, § 161.)

The natural order, of considering the points to be decided, involves the inquiries:

First. Does the answer conform, substantially, to § 161 of the Code?

Second. Does the reply, if the answer is sufficient, set up matter which avoids it, or deny any of the allegations of the answer, which it would be necessary to prove, to establish the defence which the answer sets up ?

This part of the answer, of the defendant, states that the proceedings before him, and the acts done by him, by force and in pursuance of which the defendant was committed to prison, and detained in custody, were had before him, and done by him, as mayor of the city of New York, and “that the said complaint, and offence, came and were, legally, within his jurisdiction, as such mayor as aforesaid.”

This is preceded by averments, that the plaintiff was brought before him, charged with having committed “the offence of driving a wagon, for the transportation of goods, wares and merchandise, for hire, without being duly licensed by the mayor of the city of New York, contrary to the ordinances of the mayor, aldermen and commonalty of the city of New York, passed May 30th, 1848;” an examination into, and determination upon, the charge; the making of a record of the proceedings and judgment; the issuing of process, pursuant to, and to carry the decision into effect; that he acted under, and by virtue of, authority, with which he, as such mayor, was invested by statutes of the state, which are pleaded by their title, and the date of their passage, and in accordance with ordinances, which are also pleaded, by stating the date of their passage: that, in all these proceedings, “he acted in good faith, and in the faithful discharge of his duty, as such mayor, and under and by virtue of the authority with which he, by law, as such mayor, was invested, and according to the statute in such case

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made and provided, and, more particularly, under and by virtue of ” certain acts and ordinances to which the answer refers.

I think these allegations substantially satisfy section 161 of the Code.

Unless the reply puts in issue facts necessary to be proved to sustain some allegation of the answer, essential to a complete defence, or sets up some fact which, being admitted or proved, would establish that the determination of the defendant, as mayor, was void, or the proceedings before him were a nullity, the demurrer was properly sustained.

A reply could be demurred to, for insufficiency, at the time the pleadings in this action was conducted. The demurrer was put on the 17th of March, 1851. The first sentence of the reply states an immaterial fact. Whether the defendant made up and signed a record of the conviction, is not matter which affects the question of his jurisdiction to entertain the complaint, or try the defendant for the alleged offence.

The act of 1846, chap. 802, and sections 20 and 21 of the act of 1833, chap, ii., page 14, do not require any record of the conviction to be signed and filed.

If it be assumed essential to a justification under it, that every judicial determination should be in writing, the answer shows that at the time the decision was made, the defendant reduced to and made in writing, “ an order, warrant, or commitment, under his hand and seal,” which state's the fact, that the plaintiff had been, that day, convicted before him of the alleged offence, the proceedings had, which resulted in such conviction, and the judgment rendered, as well as the default of the plaintiff to then pay the fine imposed upon him.

In the absence of any statute requiring a record of the conviction to be made and signed, we regard this “order, warrant, or commitment” as a sufficient written record or memorial of the trial or judgment. (Van Wormer v. Mayor, &c., of Albany, 15Wend. 262-265; and see Meeker v. Van Rensselaer, id. 397-399.)

The point has not been made nor suggested, that, assuming or conceding the defendant to have had jurisdiction of the offence charged against the plaintiff, and to have rendered the judgment in question, he had no authority to issue a warrant to effect its execution.

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If such a point had been raised, it would, perhaps, have been a sufficient answer to it that, having jurisdiction of the offence, and to render judgment, he had power to issue process to execute the judgment. (4 Bl. Com. 290; 1 Chitty’s Grim. Law, 55.) The statutes should not be so construed as to.render them wholly nugatory.

The plaintiff’s denial that he committed the alleged offence, or that the defendant had good and sufficient cause to convict the plaintiff, puts in issue no allegation which affirms jurisdiction of the defendant to entertain the complaint, or give the judgment. This, at most, affirms that the judgment was erroneous. But if erroneous, so long as it is conceded that it was rendered by an officer of competent jurisdiction, and under a form of proceeding authorized by law, it will protect the officer who gave it, for his acts, in investigating the alleged offence, and in issuing proper process to carry the judgment into execution. (Brittain v. Kinnard, et al., 1 Brod. & Bing. 482.)

A denial that he was not “ detained in the city hall, only during a period of time necessary and proper to conduct the examination and determination of the complaint in said answer mentioned,” puts in issue no fact essential to a full justification of the second cause of action. Ho detention of the plaintiff, in the city hall, by the defendant, is alleged, except as part and parcel of a transaction of which the plaintiff complains, by averring that the defendant “ caused the plaintiff to be arrested and detained in and about the city hall of said city for some time.” The fact of causing such an arrest is denied, by the part of the answer not now under consideration.

This action does not profess to be one to recover damages for an abuse, by the defendant, of his powers as mayor, and exercising them tyrannically and oppressively by the manner in which he conducted proceedings, of which he had jurisdiction.

The only other matter, contained in the reply, affirms that the act of the defendant, and which was alleged to be a violation of the ordinance of May 80,1848, was “ driving a wagon, containing goods, in the lawful and necessary prosecution of the business of an express, established and running between the city of Hew York and the village of Croton Falls, in said state, and for no other or different purpose whatever,” and that “the defendant, at the time

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of the plaintiff’s arrest, detention, and conveyance to prison, well knew this.”

' There is no averment that this wagon, in transacting the business in which it was employed, was ever driven, or run, out of the limits of the city of New York. For aught that is averred, or can be justly inferred, from the averments made, the wagon may have been used, exclusively, within the city of New York, in carrying goods to and from the Harlem railroad-dépót, which were to be taken out of, or had been brought within the city, by an éxpress company, or by a person engaged in that business, who conveyed all articles from the dépót out of the city, or brought all articles to it from the country, upon that railroad, and in the cars of the railroad company.

Enough is not stated to show that it was not a question, proper to be determined by the mayor, whether driving an express-wagon, in transporting goods, within the city, for hire, was a violation of that ordinance.

The reply does not allege that an express-wagon is, by the terms of the ordinance, excepted from its operation, nor does it set forth the ordinance itself. The defendant, if the allegations in his answer, showing jurisdiction to entertain the complaint, and give the judgment he rendered, had been controverted by the reply, might have shown the existence of an ordinance, of the date of the one said to be violated, which, by its terms, or fair meaning, prohibited the driving of an express-wagon, as well as any other wagon, which was employed in carrying goods, for hire, exclusively, within the limits of the city; or he might have shown one, the terms of which would have rendered it a proper subject of inquiry, and determination, whether the driving of such an express-wagon came, fairly, within its prohibitions.

In either case, his judgment, while in force, and unreversed, rendered in proceedings conducted according to law, would protect him against an action for hearing the complaint, and issuing process to execute his judgment, the reply not denying that “he acted in good faith, and in the faithful discharge of his duty, as such mayor.” (Brittain v. Kinnard, et al., 1 Brod. & Bing. 432.)

It necessarily follows, that, whether the act which the defendant had done violated the ordinance or not, or, in other words, whether the defendant had done any act prohibited by it, was the question

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to "be tried. The mayor, acting “ in good faith, and in the faithful discharge of his duty, as such mayor, and under and by virtue of the authority with which he, by law, as such, was invested,’’decided that the defendant had done an act which that ordinance prohibited, and he gave such a judgment as he was authorized to render against a person convicted of the offence of violating it.

The reply, as we think, is clearly insufficient, and the plaintiff was entitled to judgment, on the demurrer, assuming the answer to be good, in form and substance, under the Code.

We consider it good, in form and substance, unless it is apparent that the laws, under which the proceedings against the plaintiff were had, are unconstitutional and void.

Section 10, of article 3, of chapter 302, of the laws of 1846, (p. 408,) and sections 20 and 21, of the act of 1833, chapter ii., (p. 14,) taken together, in effect, provide, that the mayor, aldermen and commonalty of the city of Hew York, in common council convened, may pass such ordinances as they may deem necessary, for the licensing, and otherwise regulating the use and employment, in said city, of “ carts and cartmen, cabs and cabmen, hackney-coaches and hackney-coachmen, stages, and accommodation coaches, or omnibuses, and their drivers, and public porters, and handcart-men,” and that “ all persons offending against such ordinances shall be deemed guilty of a misdemeanor, and be punished, on conviction, before any” of certain magistrates named, of whom the mayor is one, “ by a fine, not exceeding ten dollars, or, in default of the payment of such fine, by imprisonment, provided such imprisonment does not exceed ten days.”

These statutes are pleaded, by their title, and the date of their passage, and expressly authorize the mayor to try all persons offending against any ordinance, made pursuant to the power which they grant, and also authorize such a judgment to be rendered, as was given against the plaintiff, by the defendant, as mayor.

We can not hold this statute unconstitutional, without adjudging that all similar offences cannot be tried summarily, without a jury, and thus deciding, that the construction given to the laws regulating the trial of such offences, throughout our whole judicial history, has been erroneous. We think the order appealed from is not erroneous, and it must be affirmed; but the plaintiff may amend his reply, in twenty days, upon payment of the costs of the demurrer and of this appeal.