Van De Wiele v. Callanan

Charles P. Daly, Chief Justice. The complaint was, in my opinion, defective. The averment of without just or proper cause, was not equivalent to an averment of want of probable cause, for it does not necessarily express the same thing, and could not be substituted for it. But the objection is not available now. It should have been raised either by demurrer or by a motion, at the trial, to dismiss the complaint, as not containing an averment of a sufficient cause of action. (Fay v. O'Neill, 36 N. Y. 11.) If it had appeared that, after the examination of the charge against the plaintiff, the - police justice took a recognizance for the plaintiff's appearance at the next Court of General Sessions to answer any indictment that might be preferred against him, I should be prepared to hold that the justice could not then discharge him, but upon the entering into the recognizance that he had no further jurisdiction in the matter. But this is by no means clear upon the evidence, and the case does not essentially differ from Fay v. O'Neill (supra). In that case, as in this, the recognizance was for the appearance of the accused at the Court of Sessions ; but Judge Parker said that it was inconsistent with what appeared by the entries in the minutes showing the adjournment; that the accused was bailed to appear for ex389 íimination, and was, at the adjourned day, discharged : that the recognizance was never certified to the Court of Sessions, and was manifestly never used in any way; that it came into the case after the certificate of the clerk, authenticating the proceeding in the court only, without any authentication, and should be regarded as a paper having no significance; and Judge Porter said it was provisional, and fell when the prisoner was discharged; that it was not returned to the Court of Sessions, and that no indictment was found against the plaintiff. It appears by the plaintiff’s testimony in this case that he was arrested in July, and that, after being locked up, he was in the afternoon of the same day released upon bail; that the amount was $2,000 (which is the amount in the recognizance for his appearance at .the Court of Sessions) ; that the justice, before whom the case camfe, was absent on vacation or for some other cause; and that the case was prolonged until the early part of October, when he was discharged. The recognizance is dated on the 25th of July, 1874, and nothing appears in this case respecting it, except that it was found in a package of papers filed in the Police Court. In the same package was found the affidavits upon which the -charge was made, and the examination of the plaintiff before the justice; both of which bear date of the same day as the recognizance—25th of July, 1874. There was also in the package a formal discharge of the plaintiff, signed by the justice, which was dated October 23d, 1874, nearly three months after the date of the affidavits, the plaintiffs examination, and the recognizance. As the recognizance was found on file in the Police Court, it evidently had never been returned to the Court of Sessions, as was the case in Fay v. O'Neill (supra,). The discharge shows that the question of the plaintiff’s guilt or innocence had been fully considered by the justice, as the discharge expresses it “ upon the whole case as presented; ” and he refers to circumstances exculpatory of the plaintiff, which do not appear in the affidavit of July 25, 1874, upon which the charge was made; nor in [390] the plaintiff’s examination of that elate, showing that there must have been a further investigation before the justice after that date; and further evidence, which may have been mislaid or lost, as appears to have been the case with the warrant upon which the plaintiff was arrested, which could' not be found;—nothing having been found on file in the Police Court but the package with the papers above referred to. It may be that the recognizance in question was intended to be taken for the 'plaintiff’s release on bail, pending the investigation of the case by the justice, and that by mistake a printed form for an appearance at the sessions was filled up, signed by the sureties, and acknowledged before the justice, instead of the printed form of recognizance used pending an examination. The plaintiff certainly did not understand that he had been committed for trial, and that his case was, when this recognizance was executed, to go before the grand jury; and that he, if a bill of indictment was found, was to appear at the general sessions; at the next term, for trial; for he swears distinctly that an examination was had on th e day when he was released on bail in July; that the complainant testified on that hearing, and that he, the complainant, testified on a subsequent examination; and that the case was set down for examination afterwards. He further testified that he suffered great agony of mind in consequence of the arrest; and that, to add to his sufferings, the judge before whom the case came was absent; by which it was prolonged to the early part of October. The discharge was in the latter part of October, of which he says he was informed. All this shows that he understood that the matter was pending before the justice; and that the justice so considered it, appears by his signing his discharge on the 25th of October, with a statement of his reasons for dismissing the case. All these facts, I think, indicate that there must have been some mistake in respect to this recognizance; that the justice had not decided, as the recognizance recites, on the 25th of July, 1874, that there was probable cause to believe that the plaintiff was guilty, and had ordered him to find bail for .his appearance at the general sessions. As was said in J?ay v. [391] O'Neill (supra), the recognizance was inconsistent with the subsequent proceedings; was never certified to the Court of Sessions, and never used in any way. No indictment was found, and the instrument should be regarded, as the recognizance was in that case, as “ a. paper having no significance.” The reasoning in that case fully applies to this ; and though Fay v. O'Neill (supra) was not probably decided on that ground, for the objection was not taken in the court below, still the fact that the two judges of the Court of Appeals who delivered the opinions of the court in the case, examined the point, and concurred in their views respecting it, is entitled to great consideration; to which little can be added by saying, what is apparent upon reading the opinions, that the disposition which they made of the point was a just and proper one. The objection is taken that the complaint having been dismissed, no motion could be made before the judge at the special term for a new trial; that the remedy was by ah appeal to the general term, and we are referred to Lusk v. Smith (8 Barb. 575), in which Judge Gridley said: “ It can hardly be doubted that all questions of law arising at the circuit were intended to be heard on appeal, and appeal only.” This, however, was said under the Code as it then existed—1850—and before the enactment in 1851 of section 265, providing that motions for a new trial should be heard in the first instance at the special term. As no such provision as this existed in the Code of 1848, or the one of 1849, this remark of Judge Gridley has no bearing,'the subsequent enactment having provided for the hearing of motions for a new trial upon exceptions otherwise than on appeal. In Jackson v. Fassitt (33 Barb. 647), Judge Clerke said, that motions for new trials at the special term were evidently restricted to cases in which a verdict had been rendered in trials before juries, upon the ground that the chapter in which the section is contained, allowing motions for new trials at the special term, is headed, “ Trials by Jury ; ” and all the provisions of that chapter, he says, apply only to ' [392] that form of trial. These observations are undoubtedly correct, if he meant thereby to distinguish between trials by jury and trials by the court; in which latter case, questions of fact and of law, before the enactment of the Code of the present year, could not be reviewed, except by an appeal to the general term. In the present case, the trial was not b)^ the court, but it was a trial by jury, in which, after the plaintiff had given all the evidence upon which he relied for a verdict in his favor, the judge, upon a motion made, when the plaintiff rested his case, decided that there was nothing for the jury to pass upon, and granted the motion to dismiss the complaint. The 265th section, under the chapter entitled “ Trial by Jury,” declares that a motion for a new trial, on a case or exceptions, must, in the first instahce, be heard and decided at the circuit or special term. It does not restrict it to a motion for a new trial after verdict, but evidently contemplates that when a cause is heard before a jury, and a non-suit is granted, or a verdict rendered, the motion for new trial must be made in the first instance at the circuit or the special term; which is more fully carried out by the last enactment of the Code, and applied even to trials by the court; section 1002 providing that in a case not specified in the three preceding sections, a motionfor a new trial must, in the first instance, be heard and decided at the special term; with this qualification, however, that where it is founded upon an allegation of error, in a finding of fact, or ruling upon the law, made by the judge upon the trial, it must be heard before that judge, unless he is dead or his term of office has expired, or he specially directs the motion to be heard before another judge. In my opinion, Judge Daly, who tried the cause and dismissed the complaint, in a trial before a jury, had, by the express provision of section 265, as the Code then existed, the right to hear the motion for a new trial. The order granting the new trial, therefore, should be affirmed. Van Hoesen, J., concurred. Order granting new trial affirmed.