Schmeider v. McLane , 4 Abb. Ct. App. 154 ( 1867 )

By the Court.

Davies, Ch. J.

[Having stated the facts.] —It did not clearly appear what the penalty prescribed by the ordinance for its violation was, and it does not otherwise appear than by the fact that a fine was enforced for such violation upon the conviction of the offender. It may safely be assumed therefore, that the penalty for the violation of the ordinance was of a pecuniary character solely; if otherwise, it was incumbent upon the defendants to have shown it.

[Further reference to the above facts, and remarks as to an exception not passed on, are here omitted.]

No question is made as to the power of the metropolitan police board to make and ordain the regulations already referred to and quoted.

By section 28, a person accused of a felony or misdemeanor, when the police courts are not open, is to be brought before the captain of the police, and if he is satisfied that there is reasonable ground for the complaint; ho may cause the party accused to be detained until the next morning, and it would be the duty of the sergeant of the police, having charge of the police station, to obey such order and detain the party accordingly. *

But it is to be observed that this authority is conferred only in the event that the party accused is charged with the commission of a felony or misdemeanor, and the captain shall be satisfied, upon inquiry, that there is reasonable ground for the charge. In no other event or contingency is the authority for detention to be exercised. Now, there is not a scintilla of evidence in this case that the plaintiff had committed a felony or misdemeanor, or that he was charged with having committed either. It appears the charge was that in the presence and view of the complainant, Clark, he had violated an ordinance of the common council of Brooklyn, by riding his horse upon or across a sidewalk in that city. It nowhere appears, and we are not at liberty to' assume, that this act was either a felony or misdemeanor. If it had been, it was essential to the defendants to avail themselves of the .immunity and protection afforded by these regulations of the metropolitan police board, and to have shown that the charge made against the plaintiff was a felony or misdemeanor. They had no legal right or authority to detain the plaintiff in the station house upon any other charge or complaint.

The charge of the judge at the trial was clearly correct, and the judgment should be affirmed, with costs.

All the judges concurred.

Judgment affirmed, with costs.