App. Div.] Third Department, November, 1911. WILLIAM BALDWIN, Appellant, v. GEORGE A. RICE, Respondent. Third Department, November 15, 1911. False imprisonment - information against John Doe-warrant against specified person—when justice of the peace not liable. Where a criminal information is filed against John Doe with a justice of the peace and thereupon the justice issues a warrant reciting that information on oath had been filed charging one William Baldwin with the crime, and thereupon the said William Baldwin is brought before the justice and the case against him is examined, and as the result of such examination he is held to await the action of the grand jury and committed to the sheriff of the county, the justice is not liable for false imprisonment. APPEAL by the plaintiff, William Baldwin, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 19th day of June, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff's case on a trial at the Saratoga Trial Term. Robert W. Fisher, for the appellant. Oscar Warner, for the respondent. KELLOGG, J.: A criminal prosecution before a justice is instituted by an information. The justice is then required to examine the complainant and his witnesses under oath. (Code Crim. Proc. $148.) Section 152 of that Code provides that the warrant shall specify the name of the defendant, or if it be unknown to the magistrate the defendant may be designated by any name. This provision follows from the rule that the real object of a warrant is to get the accused person in court. As stated in People ex rel. Gunn v. Webster (75 Hun, 278), "When an arrest is made the person arrested must at once be taken before a magistrate. The office of a warrant is to bring e person charged before the magistrate. When that has been th Third Department, November, 1911. [Vol. 147. done its office is at an end. The magistrate acquires jurisdiction of the person when the person is placed in his custody charged with a crime. It then becomes his duty to act." An information was filed against John Doe, which is known to be a fictitious name used in legal proceedings to designate an unknown person. Section 277 of the Code of Criminal Procedure provides that if a defendant is indicted by a fictitious name his true name shall be substituted in all subsequent proceedings as soon as it is discovered, referring to the fact that he was indicted by the name mentioned in the indictment. The plaintiff made the answer of the defendant a part of his opening address to the jury and the complaint was dismissed upon the pleadings and the opening. The warrant is set forth in the complaint and it recites that information on oath charged William Baldwin with the crime. The pleadings and opening show that when William Baldwin was brought before the mag istrate the case against him was examined into and after examination he was held to answer the charge and committed to the sheriff of the county. He was arrested on the twenty-ninth of June and the commitment to the sheriff was on the first day of July. From the fact that he was imprisoned 299 days by virtue of a warrant, order and commitment issued by the defendant, it is evident that he must have been indicted perhaps tried and perhaps convicted. Usually actions of this kind are brought when the wrong person is arrested, but we can spell out from the meagre record that the right person was arrested by this warrant. It is at least a novel situation where a person is arrested, duly examined before a magistrate, held to await the grand jury and remains in jail 299 days after he has left the justice's hands, that the justice is prosecuted for false imprisonment in issuing the warrant which brought the criminal before him for examination and resulted, after due inquiry, in his being held for the offense. The recital in the warrant that the information showed that William Baldwin committed the offense leads irresistibly to the conclusion that upon the examination, before the warrant was issued, the justice ascertained that he was probably the offender. In analogy to the proceedings on indictment, while the Third Department, November, 1911. App. Div.] information is laid against John Doe, it was the right and the duty of the justice, as soon as the name of the offender was known, to cause it to be inserted in the subsequent proceedings. The complaint alleges that the defendant was arrested, brought before the justice and held by him for examination. The real grievance alleged is the holding for examination and the subsequent commitment to prison, all of which was done after the defendant was identified as the real offender, the John Doe mentioned in the information. While it must be considered that the plaintiff has shown courage in bringing this action, under the circumstances, I think it has no cther merit, and that the justice kept well within the bounds of a judicial officer and is protected by his character as such. It is unnecessary to consider what the situation would have been if the defendant, immediately upon his arrest and before he appeared before the justice, had obtained a habeas corpus to inquire as to his detention, but after the examination, the identification of the defendant as the real offender and his commitment after examination the case is without merit. I favor an affirmance of the judgment, with costs. All concurred, except SMITH, P. J., who voted for reversal on the ground that there was no proof before the justice, before the arrest, that the plaintiff in this case had committed the crime. Judgment affirmed, with costs. MARY L. N. CURTIS, as Sole Executrix, etc., of PIERSON C. CURTIS, Deceased, Respondent, v. HUDSON VALLEY RAILWAY COMPANY, Appellant. Evidence Third Department, November 15, 1911. conclusions of witness — ability to hear whistle. The conclusion of a witness upon the very subject which the jury must decide should not be received, except in cases where from the technical nature of the subject the jury from the evidence would be unable, after knowing all the facts, to come to a conclusion. Third Department, November, 1911. [Vol. 147. On the trial of a negligence case involving a collision between a trolley car and an automobile at a street crossing, in which a question of fact arises as to whether the whistle on the trolley car was blown, it is improper to allow pedestrians walking on the road in the vicinity of the accident, and who stated that they did not hear the whistle blown, to state that they were in a position where they could have heard or would have heard the whistle blown, if one had been sounded. BETTS, J., dissented. APPEAL by the defendant, the Hudson Valley Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 1st day of November, 1910, upon the verdict of a jury for $18,500, and also from an order entered in said clerk's office on the 17th day of November, 1910, denying the defendant's motion for a new trial made upon the minutes. James McPhillips [Lewis E. Carr of counsel], for the appellant. Holmes & Bryan [John B. Holmes and Edgar T. Brackett of counsel], for the respondent. KELLOGG, J.: A collision occurred at a street crossing between the defendant's trolley car and the automobile which the plaintiff's intestate was driving, resulting in his death. The case is a very close one, both as to whether the negligence of the defendant has been established and whether the intestate was free from contributory negligence. As bearing upon the defendant's negligence, the motorman and conductor upon the car, a bystander near the crossing and the only passenger on the car heard the whistle blow. The two survivors in the automobile heard no whistle. The witness Silvernail was walking along the road with a gentleman and lady, about 200 feet from the railroad track, and he was engaged in telling them a story. The first thing that attracted his attention to the accident was the crash. He was evidently paying no attention to the trolley car nor listening for any signal. It does not appear whether he had been at the same place before when trolley cars were going by. He swears that App. Div.] Third Department, November, 1911. he did not hear any whistle blown, but will not swear positively that it was not blown. He was then asked: "Were you in a position where you could have heard if there had been one?" This was objected to as calling for a conclusion, the objection overruled and exception taken. He answered: “I would have expected to hear it because I have heard it on other occasions from a greater distance." A motion to strike out the answer was denied and an exception taken. The witness Abbie McKay, who was walking along the road near the Palmer House, 700 or 800 feet away from the railroad, did not hear any sound or whistle blown or bell rung. She was asked: "Were you so situated that you would have been likely to hear had there been one blown or rung? [Objected to as incompetent and improper and calling for a conclusion; objection overruled; exception taken.] A. Yes." Under quite similar circumstances this same testimony was received from seven witnesses under the defendant's objection and exception. It is a well-known fact that many people within the hearing of a familiar sound fail to observe it. A half a dozen people may sit in a room where a clock strikes; two may hear it, four may not notice it. The plaintiff evidently realized that this negative testimony was of but little probative force and had but little bearing upon the question whether the whistle actually sounded or not, and it was sought to strengthen the testimony by the opinion of the witness that he would have heard if it had been sounded. Otherwise the conclusion of the witness was entirely immaterial. The testimony in substance means that the whistle did not sound and that the witness knows this, because if it had sounded he would have heard it. It was for the jury to pass upon that question and conclude how intent Silvernail was upon entertaining the clergyman and the young lady, and determine the conditions of the wind, the atmosphere, the condition of the hearing of the witness and the distance which sound under such circumstances would naturally be conducted. The decision of the court saved the jury all this trouble and left it with the witness. Recent cases have made more clear the rule that the conclusion of the witness upon the very subject which the jury must |