160 N.Y.S. 996 | N.Y. App. Div. | 1916
Irrespective of the questions presented in the briefs of counsel, this judgment must be reversed upon the ground of want of jurisdiction in the court. Prior to May 8, 1915, proceedings in the Court of Special Sessions and City Magistrates’ Courts were controlled by chapter 659 of the Laws of 1910, known as the Inferior Criminal Courts Act of the City of New York, section 95 of which, so far as material, provided: “Upon the complaint, against any person for violation of the Sanitary Code or any sanitary regulation, ordinance, or order, made to a magistrate, such magistrate may order the arrest of any person against whom such complaint is made, as in any other case of a criminal offense and by his warrant may require any peace officer to make such arrest, and may, after such arrest, proceed summarily to try such person for such alleged offense; but no such trial shall be had on any arrest made in the city without sufficient notice thereof being first given to the department of health. Upon an application in behalf of said department made before the trial is commenced, the trial of such person,
On May 8, 1915, chapter 531 of the Laws of that year, amending some provisions of chapter 659 of the Laws of 1910, became operative. Article III-A was added, section 44 of which provides: “Whenever a defendant is arraigned .before a city magistrate for an offense which may be tried by a Court of Special Sessions held by a city magistrate, such city magistrate after taking the information and depositions and the statement of the defendant in relation thereto, or his waiver, may, with the consent of the defendant, after informing him of his right to be tried by three justices at the Court of Special Sessions provided for in articles two and three hereof, unless objection is made in behalf of the department in charge of the prosecution for a violation of a code, rule or order of such department, or in any other case by the district attorney, proceed to hold a Court of Special Sessions and try and determine such action upon the information taken by the magistrate and the plea of the defendant taken thereto by such Court of Special Sessions and shall exercise with regard thereto all the powers and jurisdiction of the Court of Special Sessions provided for in articles two and three • hereof and may from time to time adjourn such trial. In any case where the magistrate holds a Court of Special Sessions the action shall be tried and finally disposed of by him, or if the department in charge of the prosecution or the district attorney, as the case may be, and the defendant consent, may be tried by a Court of Special Sessions to be held by the next magistrate sitting in the same Magistrate’s District Court or be remitted with the papers to the Court of Special Sessions provided for in articles two and three hereof for trial there by three justices. * * * If the defendant
In other words, a Court of Special Sessions, composed of one
Section 39 of said chapter 531 of the Laws of 1915 provides that section 95 of the amended statute (herein- quoted) is repealed “from and after the first day of- July, nineteen hundred and fifteen.” The information by which the proceeding under consideration was commenced was sworn to before a city magistrate on May 14, 1915, and the proceeding thus instituted was then, and for one month and seventeen days thereafter, controlled by the provisions of, and procedure designated in, section 95 of chapter 659 of the Laws of 1910. The record fails to show that any notice was given to the department of health or that an application was made by it, or any order based on such application, remitting the case to the Court of Special Sessions, held by three justices, for trial. It does not appear that the summons asked in the information was issued by the city magistrate or that the defendant ever appeared in the proceeding or entered any plea. The only procedure shown is that on May 14, 1915, the information was filed and that, on November eleventh following, the defendant appeared by counsel in the Court of Special Sessions, composed of three justices, and without plea, motion or objection, proceeded to trial and was convicted. At the time of the trial the repeal of section 95 of chapter 659 of the Laws of 1910 had become effective, but even if the provisions of section 44 of the said Inferior Criminal Courts Act of the City of New York, as added by the act of 1915, controlled the procedure after July first, the status of the parties on this appeal is not changed, for the record fails to show that the order required by the provisions of either statute to transfer the case to that court or confer jurisdiction upon it, was ever
The judgment of conviction of the Court of Special Sessions is reversed.
Jenks, P. J., Carr, Stapleton and Mills, JJ., concurred.
Judgment of conviction of the Court of Special Sessions reversed.