Board of Commissioners v. McCloskey

44 N.Y.S. 111 | N.Y. App. Div. | 1897

Cullen, J. •

It is unnecessary to determine the question whether in a bastardy proceeding an appeal lies to this court from an order made by the County Court. In People ex rel. Comrs. of Charities v. Cullen (151 N. Y. 54) the Court of Appeals intimated that the right to such an appeal is open to grave doubt. But we find no reason to interfere with the judgment of the court below on the merits.

On the hearing in the County Court the appellant insisted that that court was limited to an examination of the proceedings before the police justice, and that the only matter to be determined by the court was whether the police justice erred on the evidence before him. The appellant declined to offer any evidence, and refused to cross-examine plaintiff’s witnesses. There is no authority whatever for this claim of the appellant. Section 864 of the Code of Criminal Procedure is a re-enactment of 1 Revised Statutes, 647, section 28. There seems to have never been any dispute as to the true construction of this section, or any denial that its provisions required a trial de novo in the County Court. (Roy v. Targee, 7 Wend. 358; People ex rel. Kenfield v. Lyon, 83 Hun, 303; People ex rel. Comrs. of Charities v. Schildwachter, 87 id. 363.)

The amendments of 1890 to sections 749 and 751 of the Code of Criminal Procedure have not changed the character of the proceedings on appeals from orders in bastardy proceedings. The language of section 749 is for the review of “ a judgment upon conviction.” The orders made in bastardy proceedings are never so characterized by the Code, but are spoken of as orders of filiation. If there were no other means of review of decisions in bastardy cases than those prescribed by section 749, the court might be inclined to strain the interpretation of the term “a judgment upon conviction,” so as to include such cases. But sections 861 to 880 provide a complete scheme for appeals in such cases, and prescribe the powers of the court on such appeals. It is unreasonable to suppose that, by the amendments to sections 749 and 751 of the Code it was intended to abrogate that scheme.

The order appealed from should be affirmed, with costs.

All concurred.

Order affirmed, with ten dollars costs and disbursements.