(dissenting.) This action was brought to recover the sum of $100 claimed to have been collected of the plaintiff by the defendant upon a void judgment and sentence in a criminal case, by means of threats of imprisonment if the alternative money penalty should not be paid. The facts which were agreed upon at the trial are as follows. The defendant, on the 5th day of August, 1889, being a justice of the peace in Victor, in the county of Ontario, caused the arrest of the plaintiff on a warrant charging him with having committed an assault in the third degree. On being arraigned, the plaintiff pleaded not guilty, and demanded a trial by a jury. At a subsequent day such trial was had, and the testimony in the whole case was submitted to the jury, who returned a verdict of guilty of assault in the third degree; whereupon the defendant, acting as a court of special sessions, sentenced the plaintiff to pay a tine of $100, and in default of such payment to be committed to jail until the fine should be paid, not exceeding 100 days. A certificate of conviction embodying such judgment was made out by the defendant, who declared to the plaintiff that he would commit him to jail unless the fine was paid forthwith. The plaintiff thereupon paid to the defendant this sum of $100, rather than to go to jail, and shortly thereafter demanded the return of such money, upon the ground that the same had been illegally exacted. The defendant acted in good faith, though ignorantly, in rendering such judgment, and believed he had the right to impose the whole of it. He afterwards, but after the demand of repayment of him, turned the fine into the county treasury of Ontario county. This action was brought to recover the money refused to be repaid to the plaintiff by the defendant.
No doubt, as is conceded in the case, the defendant, as a court of special sessions, had jurisdiction and authority to try the plaintiff for the offense of assault in the third degree, and impose a legal sentence against him upon conviction. But the judgment rendered by the defendant against the plaintiff was illegal, and no reasonable argument can be made to sustain it. The justice’s judgment was limited, by law, to a fine of not exceeding $50, or imprisonment not exceeding six months, or both such fine and imprisonment. Code Crim. Proc. § 717. In case of a fine only, the imprisonment until the finéis satisfied is limited to one day for every one dollar of fine. The defendant clearly acquired jurisdiction of the person of the plaintiff, and of the offense of which he was charged. In pronouncing judgment, however, he was bound by the statute, and any judgment not warranted by the statute must be deemed to be void. The plaintiff was in duress, and the payment by him of the illegal exaction made by the defendant may be recovered in this action, unless the defendant is protected by some fundamental rule of law hedging about a magistrate. The learned judge, at the trial, has based his decision upon an authority in Clark v. Holdridge, 58 Barb. 61. The facts in that case were, in many respects, similar to those appearing in this record, save the important exception that in the case before us there was a demand for the return of the money made upon the justice before an action was brought to recover the amount of the illegal fine, and before the money had been covered by him into the treasury of the county. This we deem to be an important and far-reaching distinction between the two cases. But, however this may be, even if the authority relied upon by the judge at the trial were applicable to the facts of this case, yet the decision of the court of appeals rendered in the case of People v. Liscomb, 60 N. Y. 559, would lead to a re*78versai of the judgment. In that case it was held that if the record showed • that the judgment is not merely erroneous, but such as could not, under any • circumstances, or upon any state of facts, have been pronounced, the case is not within the exemption of the habeas corpus statute, (2 Rev. St. p. 563, § 22, subd. 2,) and the applicant was entitled to be discharged; and that, too, although the court had acquired jurisdiction of the person of the prisoner and ■of the subject-matter; and that the inquiry went further, namely, as to the jurisdiction of the court to render the particular judgment. It was there held that a judgment in excess of that which, by law, the court has power to make, was void for the excess. The court, per Allen, J., says: “With us, • all punishments are prescribed by statute, as well as to character as extent; -and a sentence not conformable to law as not warranted by statute, or which is in excess of the- legal punishment, is ultra vires, and like every • other act, whether judicial or ministerial, done without legal authority, is void. A sentence to imprisonment in the state-prison for a misdemeanor would be void, as would a sentence to imprisonment when only a fine was the statutory penalty. A fine of one thousand dollars for a misdemeanor, unauthorized by law, would not protect an officer in the execution -of process for its collection of the property of the condemned, or by detaining the person until the fine should be paid. If a court having jurisdiction of the person of the accused, and of the offense of which he is charged, may impose -any sentence other than the legal statutory judgment, and deny the aggrieved party all relief except upon a writ of error, it is but a judicial suspension of -the writ of habeas corpus.”
A person whose rights have been thus invaded cannot justly be left witb- • out remedy; but what the remedy is, depends upon the circumstances of -the case. Suppose, for instance, that the judgment of the special sessions .had been, instead of afine of $100, that the defendant be confined in jail fora period of one year. His remedy clearly would have been through a writ of habeas corpus, whereby he would have been discharged as being illegally detained and imprisoned under a judgment which was absolutely void. A .fine of $100 having been imposed, with the alternative of-100 days of. im.prisonment, the plaintiff cannot be regarded as without a remedy in yield.ing to the illegal exaction in order to avoid the degradation of imprison.ment. It was not in any legal sense a voluntary payment. His remedy, therefore, must be, not by habeas corpus, for his body was not imprisoned, but by some other means; for common justice would lead us all to say he • ought not to be remediless. Having made a demand for the return of the moneys before the justice had covered them into the county treasury, we ■ think he was in a position to maintain this action. In the case of People v. Risley, 4. N. Y. Crim. R. 109, the relator was convicted in a court of .special sessions of the offense of disposing of property covered by a chattel ¡mortgage, and adjudged to pay a fine of $250, and stand committed until the fine should be paid, not exceeding one year. On habeas corpus the gen- • eral term held that the relator should be discharged, on the ground that the judgment was void, and that by section 717 of the Code of Criminal Procedure the court bad no power to render the judgment. See, also, People v. Kelly, 97 N. Y. 212, and People v. Carter, 48 Hun, 165. In- the case last -cited the relator was convicted by a court of special sessions for violation of the excise law, and adjudged to pay a fine of $100, or be imprisoned not to exceed 100 days. Upon habeas corpus he was discharged, upon the ground that, though the justice had jurisdiction of both the person and subject-matter, his judgment was void. Under these authorities, and for the reasons .above stated, the judgment appealed from was erroneous, and should have been given to the plaintiff, upon the facts found by the court.
The judgment should be reversed, with costs, and judgment ordered for the .plaintiff, upon the facts found, for the recovery of the moneys demanded.