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24 How. Pr. 425

Hart v. Kennedy

New York Supreme Court

Decided March 15, 1863

New York Supreme Court · decided 1863-03-15

<p>By §v60 of the rules of the commissioners of the Metropolitan police} of the city of New York, passed, under and in pursuance of 27th section of the act of the legislature, of April, 1860, it is- provided that the superintendent, inspectors, captains and sergeants of police, will be deemed to be always on duty.</p> <p>By the 34th section of the act of April, 1860, it is declared thate< no person holding office under this act shall be liable to military or jury duty, nor to arrest on civil process, or to service of subpoenas from civil courts, whilst actually on duty.”</p> <p>Held} that the 60th section of the rules of the commissioners must be considered as a mere rule or matter relating to discipline, as between the commissioners and those holding office under them. It cannot be deemed to affect in any manner the rights of third parties under the 34th section of the act, when persons holding office under the act arc not actually on duty.</p> <p>Though they may be deemed to be on duty, yet if they are not actually on duty9 these officers are liable to arrest and to he served with subpoenas.</p>

Decided 1863-03-15

Ingraham, J.

¶1I concur in reversing the order below as to Kennedy and Davis.

¶2The commissioners may have power by rules to provide that, for reasons of their own, officers in their employ shall be deemed always on duty; but no such regulation can alter the meaning of the terms used in the statute, “ actually on duty.” Though they may be deemed to be on duty, yet, if they are not actually on duty, the officers are liable to arrest, and to be served with subpoenas. We must look at the object of the provision to ascertain the intent of the legislature. That Evidently was to prevent an arrest, etc., while the officer was actually discharging his public duties, so as to prevent the possibility of arresting one of their officers while actually in the public employ. But when some other officer has temporarily taken his place, it cannot be said that he is actually on duty, although for police purposes they provide that they shall be deemed to be so.

¶3The reduction of the bail by the justice at chambers was a matter of discretion, With which, under ordinary circumstances, we do not interfere.

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