People v. Jackson

191 A.D. 269 | N.Y. App. Div. | 1920

Jenks, P. J.:

The district attorney of Richmond county filed an information against the defendant in the Court of Special Sessions of the City of New York for a violation of the Sanitary Code of the board of health of the department of health of the city of New York, and especially of section 163 thereof. The defendant demurred and demanded a dismissal. The demurrer was overruled. The defendant appeals from the judgment overruling the demurrer.

I am of the opinion that the appeal does not lie. The Inferior Criminal. Courts Act of the City of New York providing for appeals from the Court of Special Sessions of the City of New York reads: “ If any judgment or determination made by the Court of Special Sessions shall be adverse to the defendant he may appeal therefrom in the same manner as from a judgment in an action prosecuted by indictment, and may be admitted to bail upon an appeal in like manner; and if the judgment of the Supreme Court upon such an appeal shall be adverse to the defendant, he may appeal therefrom to the Court of Appeals as prescribed in the Code of Criminal Procedure. In case of any such appeal to the Supreme Court, or to the Court of Appeals, the procedure in, and the jurisdiction of, the said courts, respectively, shall be the same as from a judgment of conviction after indictment.” (Laws of 1910, chap. 659, § 40.) The scheme of the statute that regulates appeals in cases prosecuted by indictment does not afford an appeal from intermediate orders, but from the final judgment only. (Code Grim. Proc. § 517; People ex rel. Stabile v. Warden of City Prison, 139 App. Div. 497; affd., 202 N. Y. 138.)

But the argument of the learned counsel for the appellant is that inasmuch as this section 40 permits an appeal from “ any judgment or determination ” this appeal is well taken. The word “ determination ” does not require such conclusion. It implies an ending or finality — the ending of a controversy or a suit (New English Diet.), and it is used frequently as equipollent with judgment or decree. (1 Bouvier L. Dict. [Rawle’s Rev.] 858.) And such, I think, is its meaning in this statute. See the use of the word in section 31 of the same statute, in the declaration that the court shall have in the first instance exclusive jurisdiction “ to hear and determine all charges of misdemeanor * * *. The court shall, however, be divested of jurisdiction to proceed with the hearing and determination of any charge of misdemeanor,” etc. The phrase is “ judgment or determination,” and the doctrine of noscitur a sociis applies. There is no sound reason why such practice should be permitted by the construction of the word “ determination ” contended for. The sufficiency of an indictment may be raised upon the appeal from the final judgment. (People v. Wilson, 151 N. Y. 403; People ex rel. Hummel v. Trial Term, 184 id. 30.) As the information is like unto an indictment (People ex rel. N. Y. Disposal Corp. v. Freschi, 173 App. Div. 189, 191), so may its sufficiency be raised likewise. (See People v. Walsh, 172 App. Div. 266; Henavie v. N. Y. C. & H. R. R. R. Co., 154 N. Y. 282.)

The appeal should be dismissed.

Mills, Putnam, Blackmar and Kelly, JJ., concur.

Appeal dismissed.