People ex rel. Perkins v. Moss

CourtNew York Court of Appeals
Writing for the CourtGRAY
PartiesPEOPLE ex rel. PERKINS v. MOSS, City Magistrate, et al.
Decision Date26 February 1907

187 N.Y. 410
80 N.E. 383

PEOPLE ex rel. PERKINS
v.
MOSS, City Magistrate, et al.

Court of Appeals of New York.

Feb. 26, 1907.


Appeal from Supreme Court, Appellate Division, First Department.

Habeas corpus by the people, on relation of George W. Perkins, against Joseph F. Moss and others. From an order of the Appellate Division (99 N. Y. Supp. 138,113 App. Div. 329), reversing an order of the Special Term dismissing the writ (100 N. Y. Supp. 427,50 Misc. Rep. 198), the people appeal. Affirmed.

Upon a warrant issued by a city magistrate of the city of New York, charging him with the crime of grand larceny in the first degree, the relator was arrested by, and taken into the custody of, a police officer. Thereafter, upon a petition to the Supreme Court, setting forth his arrest and averring that the warrant was unlawfully issued and that the petitioner was illegally restrained by virtue thereof, writs of habeas corpus and of certiorari were issued directed to the defendants the police officer and the city magistrate, and commanding the production of the relator and the certification of the cause of his imprisonment. Thereupon the relator was brought before a Special Term of the Supreme Court, and, upon the return made by the city magistrate to the writ of certiorari and after a hearing had, the writ of habeas corpus was dismissed and the relator was remanded into custody. Upon appeal to the Appellate Division, in the First Department, this order was reversed and the discharge of the relator was ordered. The people then appealed to this court.

The information upon which the warrant of arrest was issued charging the relator with the crime of grand larceny in the first degree was contained in certain depositions taken before the magistrate. One deposition was by Darwin P. Kingsley, a vice president of the New York Insurance Company, which stated that in December, 1904, when he was secretary of the finance committee of that company, a meeting was had of all the members of the committee, including McCall, since deceased, who, as president of the company, was ex officio a member. It was stated by the president that, on behalf of the insurance company, he had promised to pay to Cornelius Bliss, as treasurer of the Republican National Committee, for use in the presidential campaign of that year, such sums as should not exceed $50,000, and that Perkins, this relator, then a vice president of the company, at his (the president's) request and to carry out the agreement with Bliss, had advanced to the latter large sums of money. McCall did not ask the committee to take any official action upon this statement, but desired to inform it of the facts. Conversation was had in regard to the matter and no official action was taken by the committee; but ‘it was the expressed opinion of those present that McCall should cause Perkins to be reimbursed, for the sums so advanced, out of the funds of the company.’ It was stated, also, in the deposition that McCall, ‘by virtue of his office, had power to make disbursements, known as ‘disbursements upon executive order.”

Another deposition was by Edmund D. Randolph, a trustee and the treasurer of the insurance company, who was present at the meeting of the finance committee referred to in the deposition of Kingsley, which corroborated Kingsley's statements as to what had taken place. Randolph stated that some time after the meeting in December, 1904, he drew a check to reimburse Perkins, the relator, for the moneys he had advanced to Bliss; that the payment was made by the treasurer's check to the order of J. P. Morgan & Co., a firm of which Perkins was a member; that this check was drawn by him pursuant to the direction of McCall, the president; that, ‘at that time, large powers were vested in McCall as president to order disbursements to be made from the funds of the company without first submitting for approval to any committee’; that that power had been exercised ‘upon his sole personal authority’ for many years without having been challenged; and that Perkins had had nothing to do with the transaction of the drawing of the check, or of the book entries.

The deposition was taken of Thomas A. Buckner, a vice president of the company, who identified a letter written by the relator to the district attorney the day before the issuance of the warrant of arrest. The relator's letter was written in response to the request of the district attorney for a statement of the former's conection with the contribution made by the insurance company to the Republican National Committee in 1904. From this letter it appears that Bliss, the treasurer of that committee, had informed the relator of the promise of McCall, the president of the company, that the company would contribute up to the sum of $50,000 towards the campaign; that McCall, upon inquiry, corroborated Bliss' statement and explained that as demands had been made upon him for other political contributions by the company, which did not seem to him to be for its interest to make, ‘it would make it easier for him to refuse such demands, if the payment to the Republican Committee was not at that time made directly from the funds of the company’; that he asked relator to see Bliss and to make the payments personally, and that he (McCall) ‘would see that the matter was taken care of later on’; that, accordingly, the relator advanced to Bliss, from his own resources, various sums amounting to $48,500; that in December, 1904, upon the subject of his reimbursement coming up between himself and the president, it was concluded to take the matter up with the members of the finance committee, and later, at a meeting of the committee, after McCall had explained that, at his request, the relator had made the above advances and that provision should be made for reimbursement, ‘the conclusion was reached that the president should cause me to be reimbursed’; and that a check to the order of the relator's firm of J. P. Morgan & Co. was afterwards drawn and delivered by the treasurer of the company. The letter concludes with this clause: ‘It never occurred to me that there could be any question as to the propriety of such expenditure, which I believed to be for the benefit of the company. It has come to me as a total surprise that the legality of such payments should be questioned. While so asserting, it is not my intention to dispute or deny civil liability to account to the company for these moneys. * * * I derived no personal advantage of any kind from the transaction; and certainly I had no intent other than to serve the interests of the company.’ The district attorney was authorized to make any use of the statements in the letter, and the relator waived any privilege or immunity in connection with it.

Cullen, C. J., and Chase and Werner, JJ., dissenting.

[80 N.E. 385]


[187 N.Y. 415]Wallace MacFarlane, for appellants.

187 N.Y. 416]William N. Cohen and Lewis L. Delafield, for respondent.
[187 N.Y. 418]GRAY, J. (after stating the facts).

If the information which was laid before the magistrate furnished no legal evidence of the commission of a crime by the relator, then he was illegally restrained of his liberty. If the facts shown did not warrant an inference by the magistrate of the existence of probable cause to believe that the crime charged had been committed, he was without jurisdiction to cause the arrest of the relator, and the latter was entitled to resort at once for his protection to the writ of habeas corpus. Section 2015 of the Code of Civil Procedure provides that ‘a person imprisoned or restrained in his liberty, within the state, for any cause, or upon any pretence, is entitled, * * * to a writ of habeas corpus, or a writ of certiorari, as prescribed in this article, for the purpose of inquiring into the cause of the imprisonment or restraint, and, in a case prescribed by law, of delivering him therefrom.’ The petitioner is only required to state, among other things, that he ‘is imprisoned, or restrained in his liberty; the place where, * * * and the officer or person by whom, he is so imprisoned or restrained.’ Section 2019, Code Civ. Proc. The arrest of the relator was an actual restraint of his person, and he was not obliged to await an examination before the magistrate. The provision of the statute in that respect was for his benefit; in order that he might be informed of the charge and that he might have the opportunity to examine the witnesses and to make any statement in relation to the charge. See Code Cr. Proc. §§ 188-197. He could waive these proceedings, however, and immediately sue out the writs that the legality of his detention under arrest might be inquired into. The statute, which confers the right to the writ of habeas corpus, has always been construed in favor of the liberty of the citizen. The protection afforded by it against arbitrary and illegal arrest is within the guaranties of our Constitution, and the statutes of the state have always been intended to increase the facilities for the issuance of this great and valuable common-law writ, and to insure the prompt hearing and disposition of the petitioner's case.

If the magistrate issued the warrant of arrest without sufficient[187 N.Y. 419]evidence in the particular case, the process is a nullity. The question always must be whether the magistrate acquired jurisdiction to cause an arrest of the person, and the court, upon the habeas corpus proceeding, will look back of his warrant and see if the facts stated in the depositions of the prosecutor and his witnesses support his warrant. Code Cr. Proc. § 149; Church, Hab. Corp. § 236. If they did not furnish reasonable and just ground for a conclusion that the crime charged had been committed and that the defendant committed it, then jurisdiction was lacking to hold the prisoner in custody for any time. Code Cr. Proc. § 150.

[80 N.E. 386

The relator had the absolute right to question, in this way, the sufficiency of the...

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47 practice notes
  • Wood v. United States, No. 7863.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 9, 1942
    ...imprisonment, enforce its judgments similarly, etc. 14 Cf. United States v. Ruroede, D.C. S.D.N.Y.1915, 220 F. 210; People v. Moss, 1907, 187 N.Y. 410, 80 N.E. 383, 11 L.R.A.,N.S., 528, 10 Ann.Cas. 309; Housel & Walser, Defending and Prosecuting Federal Criminal Cases (1938) §§ 165, 15 8 Wi......
  • People ex rel. Harrison v. Jackson
    • United States
    • New York Court of Appeals
    • October 14, 1948
    ...Danziger v. Protestant Episcopal House of Mercy, of City of New York, 128 N.Y. 180, 189,28 N.E. 473, 476;People ex rel. Perkins v. Moss, 187 N.Y. 410, 418,80 N.E. 383, 385, 11 L.R.A., N.S., 528, 10 Ann.Cas. 309; People ex rel. Albanese v. Hunt, 266 App.Div. 105, 41 N.Y.S.2d 646, affirmed 29......
  • Schwartz v. Romnes, No. 125-127
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 2, 1974
    ...might nonetheless be ultra vires as an unauthorized act. For this proposition plaintiff relies upon People ex rel. Perkins v. Moss, 187 N.Y. 410, 80 N.E. 383 (1907). While the court there did say that a corporation did not have the right to make a contribution to a political campaign, it ha......
  • People ex rel. DeLia v. Munsey, No. 136
    • United States
    • New York Court of Appeals
    • October 22, 2015
    ...and not against, the liberty of the subject and the citizen” (People ex rel. Tweed, 60 N.Y. at 569 ; see People ex rel. Perkins v. Moss, 187 N.Y. 410, 418, 80 N.E. 383 [1907] ).CPLR 7001 provides that article 70 applies to common-law and statutory writs of habeas corpus “[e]xcept as otherwi......
  • Request a trial to view additional results
47 cases
  • Wood v. United States, No. 7863.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 9, 1942
    ...imprisonment, enforce its judgments similarly, etc. 14 Cf. United States v. Ruroede, D.C. S.D.N.Y.1915, 220 F. 210; People v. Moss, 1907, 187 N.Y. 410, 80 N.E. 383, 11 L.R.A.,N.S., 528, 10 Ann.Cas. 309; Housel & Walser, Defending and Prosecuting Federal Criminal Cases (1938) §§ 165, 15 8 Wi......
  • People ex rel. Harrison v. Jackson
    • United States
    • New York Court of Appeals
    • October 14, 1948
    ...Danziger v. Protestant Episcopal House of Mercy, of City of New York, 128 N.Y. 180, 189,28 N.E. 473, 476;People ex rel. Perkins v. Moss, 187 N.Y. 410, 418,80 N.E. 383, 385, 11 L.R.A., N.S., 528, 10 Ann.Cas. 309; People ex rel. Albanese v. Hunt, 266 App.Div. 105, 41 N.Y.S.2d 646, affirmed 29......
  • Schwartz v. Romnes, No. 125-127
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 2, 1974
    ...might nonetheless be ultra vires as an unauthorized act. For this proposition plaintiff relies upon People ex rel. Perkins v. Moss, 187 N.Y. 410, 80 N.E. 383 (1907). While the court there did say that a corporation did not have the right to make a contribution to a political campaign, it ha......
  • People ex rel. DeLia v. Munsey, No. 136
    • United States
    • New York Court of Appeals
    • October 22, 2015
    ...and not against, the liberty of the subject and the citizen” (People ex rel. Tweed, 60 N.Y. at 569 ; see People ex rel. Perkins v. Moss, 187 N.Y. 410, 418, 80 N.E. 383 [1907] ).CPLR 7001 provides that article 70 applies to common-law and statutory writs of habeas corpus “[e]xcept as otherwi......
  • Request a trial to view additional results

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