Appeal by the defendant, Cornelius Leary, from an order of the Supreme Court, made at the Dutchess County Special Term and entered in the office of the clerk of the county of Dutchess on the 21st day of May, 1906, denying the defendant’s motion for a change of venue.
Decided 1906-07-24
Gaynor, J. (concurring):
¶1Some inadvertent judicial utterances got quite far away from the common law in respect of the right of arrest, and a close examination of the older authorities seems to show that section 177 of our Code of Criminal Procedure only restored the safeguarding common-law rule, discarding all loose utterances, instead of changing it. Nor should we even seem to acquiesce, it seems to me, in the suggestion that the police of New York 'city have any right of arrest not conferred by the Code of Criminal Procedure. Police officials there have assumed too much power already, as the present ease only shows again, and on the slightest doubt or hint might, assume even more. The old provision of New York city charters (now in section 337 of the present charter*) that the members of the police force shall possess “ all the common law and statutory powers of constables,” refers to the common law for the time being, and as it is changed from time to time. Its "re-enactment in the new charter did not enlarge its meaning. It does not refer to the common law before it was changed or defined by statute, and confer all the powers of arrest that were possessed by constables under it, plus all additional powers of arrest (if any) conferred by statute. If the statute has given any additional power, they have it, and if it has taken any away they have lost it. In a word, the charter provision refei‘s to the “law” as it is from year to year, under common and statute law combined and construed together, until the whole subject should be taken unto itself by the Legislature, when the common law would be entirely superseded by statute, which is the case in this State.
¶2Order affirmed, with ten dollars costs and disbursements.
