59 N.Y. 599 | NY | 1875
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It is claimed that the City Court of Long Island City, before which the plaintiff in error was convicted, has no constitutional existence. That court was created by chapter 460, of the Laws of 1871. The act is entitled, "An act to revise the charter of Long Island City." The specific point made is, that the act is a local act, that it contains more than one subject, and that the title does not express the subject of the erection of that court. Probably the rule in Huber v. The People (
The act last cited did not go counter to that object. The title of it was in obedience to it. The revision of an act which has incorporated a municipality is, by parity of reasoning, but one subject; certainly so if, in the revision, no different general powers are given. The revision may treat of the essential parts of the whole, as well as may the original creative enactment. And if the revision of the act of incorporation, that is of the charter, is but one subject, surely an act which is entitled an act to revise that charter expresses the whole of that subject, while it expresses but one subject. Such is the title of the act complained of. In the act of 1870, which was the origin of the municipal existence of Long Island City, judicial powers had been conferred. That was an important part of the municipal organization desired and created. An act which, by its title, announced its subject to be a revision of that charter was calculated to give notice that legislation was sought for which might touch upon the subject of the judicial power of the municipality. Thus, the object of the Constitution was carried out. We do not think that the act of 1871 is unconstitutional, on the ground alleged by the plaintiff in error.
We think that the indictment is to be held as one for burglary in the third degree. The verdict was general, *603
guilty. It was, guilty of the offence alleged in the indictment; that is, of burglary in the third degree. The punishment imposed was greater than that fixed by law for that offence. It was the sentence appropriate for burg ary in the second degree. The trial appears to have been legally conducted; the conviction appears to have been legal; the sentence alone is illegal. It is not necessary, on account of this, to reverse the judgment. This court has power in such case to affirm the conviction, and to remand the case to the court below, that the proper sentence may be given to the prisoner. (Laws of 1863, chap. 226, amending 2 R.S., 741, § 24; Ratzky v. The People,
The judgment should be affirmed, but the case remanded to the court below, that the proper sentence be imposed.
All concur.
Judgment affirmed and ordered accordingly.