(concurring):
I would' like it better if further evidence were taken to make some points more clear and to remove doubts on others.; but the burden is not on the magistrate, and I concur in the dismissal of the proceeding on the ground that the evidence submitted is insufficient to require his removal. .'
I feel' keenly, however, the reflection and criticism on the administration of the extradition laws by the judiciary .of our State, justly merited by the record now before the Court and which lias resulted in' a miscarriage of justice, particularly concerning the rights of three sister States and generally the entire nation as well, for it pertains to the performance of the duty, of surrendering fugitives from justice which-is imposed by the Federal Constitution and by the extradition laws enacted by Congress and by the Legislature of our State (XT. S, Const, aft. § 2; XT. S. R. S. § 5278; Code Grim. Broc. §§ 831, 827), for which amends cannot be' made' but only a confession of error and an expression of regret. ■ I, therefore, deem it proper to add a few observations by way of-caution and admonition to magistrates, and of warning against the assumption on their part of jurisdiction to admit to bail in extradition cases, for their jurisdiction is not general but- is limited- and confined to the- authority clearly conferred by statute, and they should not attempt, to exercise jurisdiction unless they Can point to a legislative enactment conferring it upon them. Wé are not informed how the magistrate came to assume jurisdiction to admit to bail in extradition cases; but if it appeared that he leriowingT/y acted .without jurisdiction. I would vote for removal. Mistakes of fact and errors of law may be overlooked, but it is not so easy to excuse the uuwaiv ranted assumption of jurisdiction by a magistrate with limited powers.
- The petition was presented pursuant to the direction of Governor *653Hughes, to whose attention the escape of the accused after having been admitted to bail had been drawn by the authorities of Massachusetts and Connecticut. The notice of motion and petition, which are supplemented by a statement made by the magistrate and to which he has filed a verified answer, merely present the facts without any formal charge, and the court is requested “ to deal with the matter according to law.” The acts of the magistrate are shown, but none of them is characterized as being unlawful, or as having been done in bad faith or from a corrupt motive.
It appears that the magistrate was deceived by the attorney for the accused, in whom he had confidence. It also appears that this attorney misrepresented the facts to the sureties, and that, without any evidence as to the value of their property, he filled in valuations in the affidavits of justification far in excess of the actual values, and then, without reading the undertaking or affidavits of justification to them, permitted them to acknowledge the undertak•ing and to make the affidavits of justification 'before the magistrate in his presence. On these facts, he should be presented for disbarment or discipline by the district 'attorney or by the Association of the Bar. ■
The magistrate,- in view of the nature and the number of the charges against the accused and of the warning which lie received" from the detectives of the Hew York police force with respect to the means possessed by the accused and to the probable effect of reducing bail, not only should not have reduced the- bail, but even if he had.jurisdiction to admit to bail, I think it would have been an abuse of discretion ■ to give the accused their freedom the night before the morning to "which the hearing was adjourned; for had the crimes been committed here, they were not bailable as matter of right (Code Grim. Proc. § 553), and on the statement of the detective, there was reason to believe that by admitting them to bail they would escape unless very high bail were" exacted. The most charitable view that can be taken of the -conduct of the magistrate in reducing and accepting the bail is that he resented the suggestion of the detective with respect to a matter which he supposed rested in his judicial discretion. The representations made by. the detective were ■ perfectly proper, however, and should have been given due consideration. *654As an examining magistrate, if tire crimes had been committed in New York, he had power to admit - the accused to. bail pending' examination before him, although he would have been without' power to .admit them to bail after Holding them to answer to the crimes as charged, which, in that view,, would have' been felonies and punishable by more than five years’ imprisonment. (Code Crim. Proc. §§ 146, 147, 148, 192, 209, 210, 557, 558; Sutherland v. St. Lawrence County, 101 App. Div. 299.)
The moving papers contain no' suggestion that the magistrate acted without jurisdiction, and we are not informed whether he complied with the provisions of section 832 of the Code of Criminal Procedure, which made it his mandatory duty, On the accused being brought before him, to notify the district attorney at once. Had such notice been given, however, it is probable that the accused would not have been admitted to bail, or at.least not on insufficient bail and with sureties who could not-justify and who did not know the contents of their undertakings; . Doubtless the magistrate assumed that since he had, by virtue of the provision of sections 828' to 831 of the' . Code of Criminal. Procedure, inclusive, jurisdiction..to issue warrants for the arrest of fugitives from justice'-as a preliminary proceeding, to requisition papers, and to proceed with the examination for the purpose of ascertaining whether they were charged in any State or Territory with extraditable offenses', he. might' proceed as . if the crimes were charged as having been committed here and take bail pending such examinations. If it be customary 'in such cases for magistrates - to admit to bail the practice should not be. continued, for it is quite clear, 1 think, that théy are wholly without authority to admit to bail in ■ extradition cases. The authority to admit to bail in such cases is, by the express provisions of the Code of Criminal Procedure, confined to justices of the Supreme Court and to county judges. ' (Code. Crim.- Proc.. §§ 831, 827.) I have . carefully examined the provisions of the Consolidation Act and of the Greater New1 York charter, and ! fail therein to find any statu- . tory provision vesting in the city magistrates authority to exercise the powers conferred on justices of the Supreme Court and county judges by sections 831 and 827 of the Code of Criminal Procedure with respect to admitti’ng.to bail in snob cases. There being no county judge in the county- of New York, probably judges of the Court of *655General Sessions are authorized to exercise like powers in this . county. (Code Crim. Proc. § 51, subd. 2; Id. § 89.) That authority, however, never extended to police justices, for their jurisdiction to admit to bail was, I think, limited to cases of crimes committed and triable here (Consol. Act [Laws of 1882, chap. 410], § 1486); but if it did extend to extradition cases, while it may have been transmitted to the city magistrates when police justices were abolished and the office of city magistrate was created (Laws of 1895, chap. 601, § 3), and, if so, was continued by section 1392 of the Greater New York charter (Laws of 1897, chap. 378), yet by the revision-of section 1392 of the Greater New York charter in 1901, if any authority to admit to bail had been conferred on police justices by the Consolidation Act and transmitted to city magistrates, it was repealed, and since that time it is quite clear that there has not even been room for contention that city magistrates possess authority to admit to bail in extradition cases. (See Laws of 1901, chap. 466, § 1392, as amd. by Laws of 1903, chap. 410, and Laws of 1907, chap. 598. See, also, Inferior Criminal Courts Act of the City of New York- [Laws of 0 1910, chap. 659], § 72.) The duty owing to other States under the extradition laws required that the utmost care should be exercised to hold alleged fugitives from justice until extradition warrants may be obtained in due course from the executive of. the State. There is no right to bail in extradition cases, excepting as the State Legislature may so provide by statutes not inconsistent with the acts of Congress, on arrests of fugitives from justice pending extradition. proceedings. (Ex parte Erwin, 7 Tex. App. 288; 21 Alb. L. J. 57. See, also, People ex rel. Meeker v. Baker, 139 App. Div. 471.) The statutory provisions for the arrest áfid holding of fugitives from justice in advance of the issuance' of an extradition warrant (Code Crim. Proc. §§ 828-831) were designed to make extradition proceedings effectual, but here their unwarranted and unlawful exercise has frustrated the extradition of these alleged burglars. The Legislature foresaw that under this authority which it conferred to arrest in anticipation of an application for extradition, arrests might be made in cases where it would be proper to admit to bail; but in order to reasonably insure against extradition becoming abortive by the exercise of that authority, it clothed- only the higher judicial officers with jurisdiction .to admit to bail in such cases.
*656If, therefore, it be customary for magistrates to assume to exercise authority to admit to bail in extradition cases, they should take warning and refrain from so doing in the future until they, are able to point to clear , statutory authority therefor.
Proceeding dismissed." Settle order on notice. .'