Edelman v. Dunn

• Citation: 149 A. 766
• Parties: EDELMAN v. DUNN.
• Decision Date: 27 February 1930
• Court: United States State Supreme Court (New Jersey)

149 A. 766

EDELMAN

v. DUNN.

Supreme Court of New Jersey.

Feb. 27, 1930.

Action by Samuel Edelman against James M. Dunn.

Complaint struck out.

Minturn & Weinberger, of Newark, for plaintiff.

D. Frederick Burnett, of Newark, for defendant.

MACKAY, C. C. J. (sitting as Supreme Court Commissioner).

Samuel Edelman, plaintiff, seeks to recover damages from James M. Dunn, defendant, charging false imprisonment, because Dunn as first assistant prosecutor of Passaic county agreed on January 9, 1930, at 10:15 a. m. in open court to fix bail in the sum of $7,500 for Edelman's appearance for trial. Edelman was arrested on a charge of arson and bail fixed November, 1929, at $15,000, which was given. An indictment was found by the grand jury, hence Edelman was notified to appear and give new bail and have a day fixed for trial. The complaint charges further that Dunn willfully and maliciously refused to accept the bail, falsely and fraudulently pretending that he had to investigate the same before he would accept it, and caused said Edelman to be imprisoned until the alleged investigation was completed. That Edelman then applied to Judge Delaney of the quarter sessions to compel and direct the acceptance? of the bail, and the judge forthwith directed Dunn to attend to the acceptance of bail. Further, that Dunn knew before investigating that the bail was sufficient because he had accepted the same bondsman and the same real estate security when Edelman was first arrested, and prior to his indictment and arraignment on January 9, 1930.

The theory of the plaintiff's complaint is that defendant had power to fix and accept bail. This does not appear to be so.

Under the Criminal Procedure Act, the judge of the quarter sessions fixes the bail in an arson case. Section 24, 2 Comp. Stat. 1910, p. 1828. The sheriff or county clerk may admit to bajl upon the order in writing of the judge (see section 20), and I am of the opinion that these last-named officials are the proper persons to examine or investigate the bail. There appears to be no warrant in law for the judge to delegate the power to investigate bail (which plaintiff alleges in his affidavit the judge did), nor any authority for the assistant prosecutor to take upon himself the performance of this task. Plaintiff's affidavit is to the effect that there is a long-established rule of the prosecutor's office to investigate bail. He attaches a blank form, signed in blank by the judge. This blank form clearly sets forth: "The clerk of this court or the sheriff of the county of Passaic is hereby authorized to take bail in the above stated case."

Why, then, should assistant prosecutors walk around with blank forms signed by the judge and take bail when they see fit, having no authority in the premises so to do. It can and may open the door for favoritism. It is reprehensible in the extreme. If the present law is not satisfactory, then let the Legislature act, but, until they have done so, let us...