Brunner v. Downs

Hardin, P. J. By the evidence it appears that the common council adopted an ordinance, May 22, 1867, which was amended September 20, 1875, relating to the fire limits. That ordinance provided: “No building, or part of any building, unless constructed with outside and party wall of brick or stone, and fire-proof roof, shall, without the permission of the common council, given by a vote of two-thirds of all the members elected thereto, hereafter be erected or placed or moved from one point to another within, or moved from another place into, the following described territory, which shall constitute the fire 635 limits of the city of Binghamton, viz., the city limits of the city of Binghamton shall constitute the fire limits of said city.” The ordinance further provided as follows: “¡No building within said limits which may hereafter be damaged by fire, to the extent of more than fifty per cent, of the value thereof, shall be rebuilt, except in the manner and of the materials hereinbefore authorized to be used, without the permission of the common council, given by a vote of two-thirds of all the members elected thereto.” By chapter 214, Laws 1888, tne charter of the city was revised, (Sess. Laws 1888, p. 321,) and in subdivision 23 of section 5 of title 3 the common council is given power “to regulate the thickness and manner of construction of brick, stone, or wooden walls for building; to prohibit the construction of any such building or wall as it may deem dangerous to life, and require the removal of any such so constructed; to prohibit the erection of sheds and fences in such a manner as unnecessarily to vex or annoy the adjoining proprietors, and to require the removal of any such so erected,” etc; and in subdivision 25 power was given to the common council “to extend and define, from time to time, the ground to be included within the fire limits; to require, regulate, or prohibit all such other acts to be done as it may deem proper to prevent the occurrence or to provide for the extinguishment of fires in the city.” In section 25 of the revised charter (Sess. Laws 1888, p. 380) it was provided that “all ordinances heretofore made by the common council of said city are hereby legalized and •confirmed, and declared legal and valid, provided they are such ordinances as said common council is authorized to pass under this act as hereby amended; and, whenever by said ordinances a penalty is prescribed for their violation, the word ‘penalty,’ as therein used, shall be construed to mean and include penalty or fine; and either a penalty or a fine, to the amount therein named, may be imposed for the violation thereof, as the court or officer before whom complaint shall be made may determine.” In section 8 of title 3 power was given to the common council to provide that imprisonment might be made in the Broome county jail, and discretion was given to the court to impose “punishment in the discretion of the court, but no penalty or fine shall exceed one hundred dollars, (except in the case of constructing or repairing buildings within the fire limits, as hereinafter directed,) nor the length of such imprisonment exceed one hundred days.” Following this provision in the charter is one as follows: “The violation of any such ordinance is hereby declared to be a misdemeanor, and may be punished as such when the mode of punishment shall not be prescribed in such ordinance. Violation of all ordinances and resolutions may also be restrained by the injunction order of any court having jurisdiction, ” etc. In title 4 of the Revision, the recorder is given jurisdiction to issue criminal process, and to hold a court of special sessions; and by section 4 of title 4 he is authorized to “hear, try, and determine, in a summary way, any complaint for any violation of the laws of the state, * * * or of the ordinances of the city. ” In section 3 the recorder is authorized “to hear and entertain complaint, and conduct all examinations in criminal cases.” That section further provides that “the court of special sessions held by said recorder shall also have jurisdiction of, and power to hear and determine, charges for every other misdemeanor committed, or charged to have been committed, within said city, for which the accused shall elect to be tried before said court. Whenever a defendant tried before a court cf special sessions held by said recorder shall be convicted, said court shall render judgment upon such conviction, and shall inflict such punishment, by fine or imprisonment, or both, as any other court having jurisdiction of the offense could inflict, and shall have the same jurisdiction to sentence and punish the persons so convicted as courts of sessions have for the same offense.” Weareof the opinion that the recorder had jurisdiction over offenses known as “misdemeanors” committed in the city of Binghamton in virtue of the pro 636 visions of the statute which we have quoted. We are further of the opinion that section 25 of the charter “legalized and confirmed” the ordinances passed in respect to the fire limits already referred to. We are also of the opinion that section 8 of title 3 declares every violation of an ordinance to be a misdemeanor; and it further provides that such violation “may be punished as such when the mode of punishment shall not be prescribed in such ordinance. ” Section 8 of title 3 seems to limit the fine to be imposed for the violation of the ordinance in question to a sum not exceeding $100, and to declare that the imprisonment shall not exceed 100 days. We are inclined to think this limitation takes a violation of the ordinance in question out of the general provisions of section 15 of the Penal Code, which applies to' cases where punishment is not specifically prescribed in a statutory provision or in that Code. The penalty imposed by the recorder did not exceed that permitted in section 8 of title 3. We are of the opinion that when the affidavit or deposition of Me well was presented to the recorder on the 12th of February, 1889, he was called upon to decide whether a misdemeanor had been committed within his jurisdiction, and that when he issued the warrant on that day for the arrest of the plaintiff he had jurisdiction of the subject-matter and of the person of the plaintiff, who was accused of violating section 3 of an ordinance of the city by “building or repairing a building which was injured by fire to more than fifty per cent, of its value, without permission of the common council of the city of Binghamton. ” In Harman v. Brotherson, 1 Denio, 537, it was held that, although an affidavit was insufficient to sustain an order to hold to bail against a motion to set it aside, it protected the officer making it against an action for false imprisonment. In that case it was said: “If Brotherson had moved the court, the order to hold to bail would have been revoked. But it is a very different question whether the officer who made the order can be treated as a trespasser. It was a case where, upon proper proof, an order to hold to bail might be made. A copias and an affidavit were laid before the officer, the affidavit making out a fair case for the exercise of his judgment. The plaintiff might have been relieved, on motion, from the effect of the order, but he cannot maintain an action against the officer. ” A similar doctrine was laid down in Laudt v. Hilts, 19 Barb. 283, and many other cases bearing upon the question were referred to and commented upon in the opinion of Hardin, P. -I., delivered in Austin v. Vrooman, which opinion has been approved by the court of appeals, as appears by the opinion of Peokiiam, J., reported in 28 N. E. Rep. 477. Other questions are presented in the argument of the counsel for the appellant, but we find them quite satisfactorily discussed and disposed of in the opinion of Barker, J., delivered in denying the motion for a new trial upon the minutes. The motion for a new trial on the minutes did not specify any grounds upon which it was made, nor does the order specify any grounds upon which the same was made; we therefore may not review the same. The appeal from the order should be dismissed, and the judgment entered upon the nonsuit should be affirmed, with costs. All concur.