Lawton v. Farrell

Woodward, J.: This is an action for false imprisonment, originating in the county of Schoharie, where the defendant served a warrant in a bastardy proceeding, and refused and neglected to permit the plaintiff an opportunity .to give bail to a magistrate within Schoharie county, but insisted on taking the plaintiff to the city of Troy, where he was imprisoned until reléased by a writ of habeas corpus. This motion was made to change the place of trial on the ground that under the provisions of section 242 of the Second Class Cities Law (Consol. Laws, chap. 53; Laws of 1909, chap. 55) the defendant, who is a police officer of the city of Troy, is entitled to have the action tried in Rensselaer county. Section 242 provides generally that in judicial investigations the fact of residence within the city shall not disqualify judges, jurors, referees, etc., and then adds: “ The place of trial of all actions and proceedings against the city, or any of its officers, boards or departments, shall be the county in which the city is situated; ” and the defendant, who is concededly a police officer of the city of Troy, strenuously urges that he cannot be tried in Schoharie county. But the defendant is mistaken in the law. Subdivision [378] 2 of section 983 of the Code of Civil Procedure fixes the place of trial in a casé of this character; no question is made of this, except as it is claimed to be changed by the provisions of section 242 of the Second Class Cities Law. There are two very conclusive reasons why the defendant is not entitled to the order which he seeks; one of them is that he was not acting as a policeman of the city of Troy in executing the warrant in Schoharie county. Section 142 of the Second Class Cities Law provides that the members of the police department, other than surgeons, in criminal matters have all the powers of peace officers under the general laws of the State, and provides certain other duties in respect to local ordinances; and this constitutes the duties which as policemen they are called upon to perform within the city. It then provides that they “ shall also have, in every other part of the State, in criminal matters all the powers of constables and any warrant for search or arrest issued by any magistrate of the State may be executed by them in any part of the State according to the tenor thereof without indorsement.” That is, outside the limits of the city they cease to be officers of the city, and are invested by the statute with the powers of constables in reference to criminal matters. Acting as a peace officer, outside the city, he is acting wholly in his personal capacity (People ex rel. White v. Clinton, 28 App. Div. 478, 479, and authorities there cited), and he does so under the same responsibilities as would attach to him were he a sheriff or a deputy sheriff or a constable. The second ■ reason is that the Second Class Cities Law did not contemplate a repeal of the provisions of the Code of Civil Procedure. Section 250 of the act provides for the construction of the same, and declares that the “ provisions of this chapter have reference only to a city of the second class,” and “ shall be construed not as an act in derogation of the powers of the State but as one intended to aid the State in the execution of its duties, and shall be liberally construed so as to carry into effect the objects and purposes thereof,” and then the following section provides that “ Nothing contained in this chapter shall be construed to repeal any statute of the State or ordinance of the city or rule or regulation of the board of health, not inconsistent with the [379] provisions of this chapter,- and the same shall remain in full force and effect, when not inconsistent with the provisions of this chapter, to be construed and operated in harmony with its provisions.” Obviously, where a police officer goes outside of the city and executes a warrant, under the authority given by section 142 of the Second Class Cities Law, there is no inconsistency in permitting the Code of Civil Procedure to govern in an action for false imprisonment originating in an adjacent county. If the act of false imprisonment had originated in the city of Troy, while the officer was engaged in performing some of his duties as a policeman, it may be that there would be ground for holding that he was entitled to the provisions of section 242 of the act, but we are clearly of the opinion that his character as an officer of the city of Troy does not accompany him outside of that jurisdiction; to the laws of Schoharie county he is a mere peace officer, subject to the same conditions which would prevail if he had been a deputy sheriff of Rensselaer county instead of a member of the police force of the city of Troy. No good reason suggests itself why the plaintiff, a citizen of Schoharie county, where the false imprisonment had its inception, should be denied the right of trial in his own county simply because the warrant was given to a policeman of the city of Troy for execution, rather than to a deputy sheriff, and the provisions of section 1 of article 1 of the State Constitution would seem to guarantee him this privilege which belongs under the provisions of section 983 of the Code of Civil Procedure to citizens generally. The order appealed from should be affirmed, with costs. All concurred, except Cochrane, J., who dissented in a memorandum in which Kellogg, P. J., concurred.