71 N.Y.S. 274 | N.Y. App. Div. | 1901
The appellant was arrested under a warrant of a magistrate, upon an affidavit of his wife alleging that ho had abandoned her without adequate support, and upon a hearing the magistrate found the appellant guilty and required him to pay for the support of his wife and children the sum of three dollars per week for the period of one year. In pursuance of this order the appellant gave a bond as required by the statute. This bond was executed on the 15th of March, 1900. On the 21st of March, 1900, the appellant presented an affidavit setting forth his arrest and conviction, and alleging that the order of the magistrate was erroneous in various particulars. The second allegation of error was “ that the charge of the abandon- - ment against me was not proven,” and the sixth, “ that the decision is against the law and weight of- evidence.” The magistrate made a return in which he failed to return the evidence taken before him, and it seems to have been conceded by counsel that the evidence taken before the magistrate was not reduced to writing and preserved by him.
To secure the allowance of an appeal from the determination of a city magistrate the defendant, or some one on his behalf, must within sixty days after the judgment, or within sixty days after the commitment where the appeal is from the latter, make an affidavit showing the alleged errors in the proceeding or conviction or commitment complained of, and must within that time present it to a
Here, one of the errors assigned in the affidavit being an erroneous determination of the question of fact, it was the duty of tho magistrate to return the' evidence, and his failure to do so would require a reversal of the order if the appellant was justified in raising that question on this appeal. Upon the return, however, it appears that before this affidavit was presented to the recorder of the city of New York and leave to appeal granted, the defendant had given the bond required by the magistrate. By section 861 of the Code of Criminal Procedure, which is by section 1456 .of the Consolidation Act made to apply to the enforcement of an order made in this
Here the magistrate has first to determine whether the defendant is a disorderly person within the meaning of section 1455 of the act, and then to make an order for the payment of a sum to be fixed for
The defendant, however, by his fifth assignment of error, alleges- “ That the order and commitment herein is invalid and void in that, it does not provide for the alternative of giving security, as required, by Section 686 of the Greater New York Charter and in that it is-ordered that bond be in the sum of one hundred and fifty-six ($156) dollars and pay three dollars per week for the support of wife and children.” Here is a direct assignment of error in that part of the-order-which fixes the weekly allowance to be paid by the defendant, and he is, therefore, entitled to have the action of the magistrate-fixing the sum of three dollars per week reviewed by the Court of General Sessions. By section 689 of the charter of the city of New York (Laws of 1897, chap. 378) an appeal is allowed from a conviction before a city magistrate to the-Court of General Sessions, and. it is provided that said appeal shall be ■ conducted under and in accordance with the provisions of the Code of Criminal Procedure-of the State of New York, except that the notice required to be-served upon the district attorney upon such appeal shall be served upon the commissioner for the borough in which the conviction from which such appeal is taken was had. To determine upon appeal the-propriety of the order fixing the amount of three dollars weekly the-evidence before the magistrate was essential, and as the magistrate-has not returned such testimony the conviction cannot stand. By section 764 of the Code of Criminal Procedure it is provided that, after hearing the appeal the court must give the judgment which the court below should have rendered, or “ may, according to the justice-of the case, affirm or reverse the judgment, in whole or in part, as to-all or any of the defendants,” or may order a new trial, or may
The order appealed from should, therefore, be reversed and a ne.w trial ordered before the magistrate, and under section 689 of the charter of the city of New York, this reversal must be with thirty dollars costs and disbursements to the defendant.
Yan Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred.
Order reversed and new trial ordered before magistrate, with thirty dollars costs and disbursements to the defendant.