15 N.Y. Crim. 270 | N.Y. App. Div. | 1900
Lead Opinion
So far as the practice relating to appeals in bastardy proceedings is concerned, it seems to have been settled by this court, at least by implication, that an appeal lies to this tribunal (People v. Tripicersky, 4 App. Div. 613 ; Keller v. Mertens, 37 id. 497). where such appeals were entertained.
A different rule was announced by the second department. (Simis v. Alwang, 48 App. Div. 530.) . In the latter case, however, the provisions of chapter 601 of the Laws of 1895 were not called to the attention of the court, nor was the effect of that act considered. It is not necessary,, however, in the view which we take of the present case, that such questions should be decided, although it is quite probable that the terms of the act of 1895, section 20 of. which is made applicable to the Court of .Special Sessions in the city of Yew York by section 1413 of the Greater Yew York charter (Laws of 1897, chap. 378), are sufficiently broad to authorize the appeal. ' A fatal objection, however, prevents the hearing of this appeal as it appears in the record that this court is without jurisdiction to entertain it.
Section 20, chapter 601, Laws of 1895, provides how appeals from the Court of Special Sessions shall he taken by the defendant, in •these words, “he may appeal therefrom (the judgment or determination) to the Supreme Court in the same manner as from a judgment in an action prosecuted by indictment.” By the prior provisions of this section all laws conferring the right of appeal from Courts.of Special Sessions are repealed. This section, therefore, frirnishes the only, authority for this appeal. An appeal by'a defendant from a judgment in an action prosecuted by indictment is regulated by the Code of Criminal Procedure. (Tit. 11, chap. 1, §§ 515-532.) Section 522 provides that an appeal must be taken by the service of a notice ini writing on the clerk witli whom the judgment roll is filed. And. by the next section (523) if. the appeal is taken by the defendant a similar notice must be served'on the district attorney of tlie county in which the original judgment was rendered. In the present case the defendant served his notice of appeal upon the
We, therefore, reach the conclusion that this court is without jurisdiction to entertain the appeal. It should, therefore, be dismissed.
Van Brunt, P, J., and O’Brien, J., concurred; Ingraham and McLaughlin, JJ., dissented. .
Dissenting Opinion
The respondent insists that the order of filiation of the Special Sessions of the county of Hew York is not appealable to the Appellate Division of the Supreme Court. These proceedings were instituted under the Code of Criminal Procedure; . Section 839 thereof provides: “ The father and' mother of a bastard are liable for its support. In case of their neglect or inability, it must' be supported by the county, city or town in which it is born, as provided by special statutes,” Section 840 provides: “ If a woman be delivered of a bastard, or pregnant of. a child likely to be born such, and which is chargeable to a county, city or town, a superintendent of the poor of the county, where the distinction between town and county, poor has been abolished, and where said distinction is still maintained, an overseer of the poor or other officer of
Thus, before the act of 1895, to which reference will be made, an appeal from an order of filiation, either by the complainant or by the defendant, was allowed to the County Court of the county, and that court was to rehear the case upon evidence there presented, and could confirm, vacate or modify the order. In the county of Hew York such'an appeal was from the Court of Special Sessions to the Court of General Sessions, and upon such an appeal the provisions of the sections of the Code of Criminal Procedure, to which attention has been called, were made applicable.
Chapter 601 of the Laws of 1895 reorganized the inferior courts of criminal jurisdiction in the county of Hew York, and the Court of Special Sessions as it now exists was constituted. By subdivision 3 of section 14 of that act it was provided that such court “ shall have exclusive jurisdiction in the first instance of all proceedings respecting bastards, and the jurisdiction conferred by sections eight hundred and thirty-eight to eight hundred and sixty inclusive of the code of criminal procedure shall be exclusively exercised within said city and county by the said court.” These are the provisions of the Code of Criminal Procedure which regulate the proceedings in the courts of original jurisdiction to which attention has-
This provision is certainly broad enough to repeal the provisions of section 861.of the Code of Criminal Procedure, and by it the right of ' appeal to the Court of General Sessions of the Peace of -the city and ; county of Hew York was taken away. The section then provides: “If.any judgment or determination made by the said Court of Special Sessions on or after the said last-mentioned day shall be adverse to the defendant, hé may appeal therefrom to the Supreme Court in the same manner as from a judgment in an action prosecuted by indictment.”. This provision allows an appeal in a case where the judgment or determination of the court is adverse to the defendant,while under the Code of Criminal Procedure either party in a proceeding of this character could appeal. The practice that had been ' in force many years prior to the passage of this statute was changed so that upon an appeal to the Supreme Court the procedure was to be the same as -upon an appeal thereto from a judgment of conviction after indictment. Such an appeal is an entirely different proceeding than that contemplated by the Code of Criminal Procedure. There the appeal to the County Court was substantially a new trial of the charge against the alleged father of the bastard, while upon such an appeal to the Supreme Court the appeal must be deterinined upon the evidence taken before the Court of Special Sessions. It1 cannot be supposed, however, that the Legislature intended to abolish all right of appeal in these proceedings, and the intention was to substitute an appeal to the Supreme Court to be determined upon the evidence before the Court of Special Sessions in these proceedings, in place of the appeal theretofore allowed to. the Court of General Sessions.
.By the charter of the city of Hew York (Laws of 1897, chap. 378) the provisions of law as to the Courts of Special Sessions were re-enacted. By section 1406, subdivision 3, it is provided that the Courts of Special Sessions “ shall have exclusive jurisdiction in the first instance of all proceedings respecting bastards within the city of Hew York and the jurisdiction- conferred by sections eight hundred
It would appear from this that the provisions of the act of 1895 "were continued in force and made applicable to judgments or determinations of the Court of Special Sessions in the city of New York. In Simis v. Alwang (48 App. Div. 529) the Appellate Division of the Supreme Court in the second department held that there was no appeal from an order of filiation in bastardy proceedings from the Court of Special Sessions to the Appellate Division of the Supreme Court. That case arose on an appeal from an order made in the county of Kings. The attention of the court in that action was not called to the act of 1895, which, as we have seen, expressly abolished or repealed all provisions of law conferring the right of appeal to the Court of General Sessions of the 'Peace in the city and county of New York, and provided that where such determination in the Court of Special Sessions of the city and county of New York was adverse to the defendant, an appeal should be had to the Supreme Court. Nor was the attention' of the court called in that case to the constant practice in this department allowing such appeals to the Appellate Division. (Keller v. Mertens, 37 App. Div. 497.) We think, therefore, that under the provisions of this section an .appeal from the Court of Special Sessions in the county of New York in such a proceeding lies to the Appellate Division.
Then defendant insists that this order was not justified. Upon the statement made by the complainant upon which the warrant was granted she stated that she was delivered of a bastard child at the «city of New York, but upon her examination in court she testified that the child was born December 13, 1899, at No. 31 Sixth street,
I do not see that article 3 of the Poor Law (Laws of 1896, chap. 225) has any application to this proceeding. The article applies to-the settlement and place of relief of poor persons. This article con
It follows that the order appealed from should be reversed and the proceedings dismissed.
McLaughlin, J., concurred.
Appeal dismissed.