Ingraham, J.:
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 *144justice of the Supreme Court or, in the city and county of New Yo.rk, to the recorder or a judge authorized to hold a Court of General Sessions in that city, and apply thereon for the allowance of 'the ■appeal (Code Crim. Proc. § 751).; and it has been held that the error to be relied upon on appeal must be specified in the affidavit upon which the appeal was allowed, or it will not be considered in the appellate court. (People v. McGann, 43 Hun, 57.) Here as the assignment of error in the affidavit was that the charge of abandonment was not proven, and that the decision was against the law and the weight of evidence, the question on appeal would be whether the judgment or order of the magistrate was sustained by the evidence taken-before him, and this required the magistrate to return to the court the evidence. Where the error pointed out in the affidavit is as to a question of fact, and the magistrate in consequence of his neglect to take down the evidence has failed to return it so that the appellate court can determine whether or not the charge was proven, it is the duty of the court to set aside the conviction and order a new trial. (People v. Giles, 12 A.D. 495" court="N.Y. App. Div." date_filed="1896-07-01" href="https://app.midpage.ai/document/people-v-giles-5181628?utm_source=webapp" opinion_id="5181628">12 App. Div. 495; S. C., 152 N.Y. 136" court="NY" date_filed="1897-03-02" href="https://app.midpage.ai/document/people-v--giles-3593625?utm_source=webapp" opinion_id="3593625">152 N. Y. 136.) In this case the Court of Appeals held that the errors relied upon must be pointed out in the affidavit upon which the appeal is allowed; and that under section 750 of the Code of Criminal Procedure an appeal may be allowed for an erroneous decision or determination of law or fact upon the trial, and when the error relied upon pointed out in the affidavit upon which the appeal is allowed is the determination of a question of fact, the magistrate "must return the evidence so that the appellate court can determine whether or not the question of fact was correctly decided by the magistrate.
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 *145proceeding, it is provided: “ A person deeming himself aggrieved by the order of two magistrates, made pursuant to the last chapter, may appeal therefrom to the next term of the County Court of the county; except that a person who has executed an undertaking to obey an order of filiation, and indemnify the public, as provided in section eight hundred and fifty-one, cannot appeal from any other part of the order mentioned in section eight hundred and fifty, than that which fixes the weekly or other allowance to be paid.” By section 850 it is provided that upon the hearing the magistrate must determine who is the father of the bastard, and must proceed to discharge the defendant if he is not the father, and to require him to pay a sum weekly or otherwise if he is the father for the support of the bastard. There were two questions to be determined. One as to whether the defendant was the father of the bastard and, if so, the sum which he must pay for its support. By section 861 of the Code of Criminal Procedure, where the defendant has given an undertaking to obey the order, he can only appeal from that part of the order which fixes the weekly or other allowance to be paid; and it is claimed by the respondent that no appeal will lie where a bond has been given from that part of the order convicting the defendant of being the father of the bastard. By section 1455 of the Consolidation Act, continued in force by section 1610 of the charter of the city of New York, “ Every person who shall threaten to abandon, or who shall have actually abandoned his family, wife or child, in the city of New York, without adequate support, or'in danger of becoming a burden upon the public, or who may neglect to provide, according to his means, for his family, or any member of said family, is hereby declared a disorderly person; ” and by section 1456 of the Consolidation Act- (Laws of 1882, chap. 410) it is provided that “ In case of the conviction of any such person as a disorderly person, the magistrate convicting shall make an order specifying a certain sum to be paid to the commissioners of charities and correction of said city, weekly, for and toward the support of the.family of said defendant.”
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 *146the. support of the wife or family of the defendant; and by section 861 of the Code of Criminal Procedure, where the defendant has-executed an undertaking to obey the order, he cannot appeal from, any other part of the order mentioned in section 850 than that which fixes the weekly or other allowance. If under these provisions the defendant, having given the bond or undertaking required by the magistrate for the payment of three dollars weekly for the support-of his wife, could not appeal from any part of the order of the magistrate, except the order fixing the amount to be paid, no-appeal would lie from his conviction as a disorderly person by the magistrate.
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 *147modify the sentence. ! As we have not the evidence before the magistrate it is impossible, apon this appeal, either to affirm or modify the judgment. We are constrained, therefore, to reverse the judgment and order a new trial before the magistrate.
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.