People v. Ash

60 N.Y.S. 436 | N.Y. App. Div. | 1899

Hatch, J.:

The question was raised, upon "the argument in this case, as to whether it was properly before this court for review. Upon an appeal from the Municipal Court of the city of Hew York the pro.. visions of chapter-19, title 8 (§§ 3044-3061) of the Code of Civil Procedure apply. The record in such case consists of the notice of appeal and the -return of the justice thereto. The appeal lies to the Appellate Division in this department -by virtue of a designation made by such court pursuant to the authority conferred by chapter 546 of the Laws of 1898, amending section 1367 of the Greater New York charter (Laws of 1897, chap. 378). The appeal is heard upon either printed or -written papers under the rules formulated.by the court governing the hearing of such appeals. These laws and rules have no application to the review of judgments of conviction by Courts of Special Sessions. The latter courts are created by the provisions of title 3 of chapter 20, section. 1394 and cognate sections of the Greater Hew York charter. Practice on appeals from the Court of Special Sessions is governed by the provisions of section 1413 of such charter, by section 20 of chapter 601 of the Laws of 1895 and by chapter 1, title 11, part 4, of the Code of Criminal Procedure (§§ 515-532). These proxdsions require that notice of the appeal shall be served upon the clerk of the court where the judgment is rendered, and upon the district attorney of the county, upon the service of xvliich the clerk of the court must make up a judgment roll consisting of the papers instituting the proceeding,' the judgment of conviction, the evidence upon which it was based,, xxdien necessary to present the question sought to be reviexved, which, together xvith the notice of appeal and a proper certificate by the clerk, constitute the record upon xvliich the case is to be heard in the appellate tribunal. When the case is made up the same may be brought on for hearing in the same manner and upon the same notice as apply to appeals from judgments of conviction' on indictments. ,

In tlie case before us there, xvas no attempt at compliance with this practice, but the appeal xvas attempted to be brought to a hearing under the rules applicable to appeals from the Municipal Court. There is, therefore; no record before ■ us such as the law contemplates shall be made ; consequently the case is not in condition for this court to review. The appeal, however, xvas proper; it is the record that is defective. Ho motion to dismiss the appeal for failure to make a case has been made, and as the practice is nexv, we conclude to decline to consider the question which "has been attempted to be presented, and remit the defendant to the preparation of a proper case, xvithont prejudice to her right so to do.

All concurred.

Case remitted for correction of record on appeal.