136 N.Y.S. 88 | N.Y. App. Div. | 1912
This is an appeal from an order denying an application for a peremptory writ of mandamus, directing John C. McGuire
The facts may be summarized as follows: On April 9, 1912, relator appeared with Solomon S. Schwartz, his counsel, before John 0. McGuire, a city magistrate then sitting in the Sixth District Magistrate’s Court, and presented to him a paper which is in the form of a deposition, although -unsigned and -unverified, and demanded that a warrant, be issued for the arrest of John L. Belford for an alleged violation of section 43 of the Penal Law. It thereupon became the duty of the magistrate to examine on oath the informant and prosecutor, and any witnesses that he might produce, and take their depositions in writing and cause, them to be subscribed by the parties making, them, and if he was satisfied therefrom that the crime coinplained of had been committed and that there was reasonable ground to believe that defendant had committed the same, to issue a warrant of arrest. (Code Crim. Proc. §§ 148, 149, 150.) By a subsequent statute (Laws of 1910, chap. 659, § 82) it is further provided that, ‘ ‘ When a complaint, oral or written, is made to a magistrate and the magistrate is not satisfied that a crime has been committed, but believes that in the public interest he should inquire into and investigate the complaint so made, he may issue a summons.” The magistrate did not examine the informant and prosecutor on oath. It does not appear that any witness other than the relator was produced before him for examination. In opposition to the motion for the peremptory writ, Magistrate McGuire submitted an affidavit, the statements in which for the pin-poses of such application must be accepted as true (People ex rel. Corrigan v. Mayor, etc., 149 N. Y. 215; Matter, of Haebler v. N. Y. Produce Exchange, Id. 414; Matter of Breckenridge, 160 id. 103; People ex rel. Myers v. Moynahan, 130 App. Div. 46; People ex rel. Murphy v. Bingham, Id. 112), from which it appears that he examined the proposed affidavit and considered it as if it had been a deposition, and after hearing counsel for the relator, was not satisfied that any crime had been committed, and, therefore, refused to issue a warrant, and when subsequently requested to issue a sum
The order should be affirmed, with ten dollars costs and disbursements.
Hirschberg, Thomas, Woodward and Rich, JJ., concurred.'
Order affirmed, with ten dollars costs and disbursements.