123 Misc. 443 | New York Court of Special Session | 1924
This is a motion to vacate and set aside a judgment of conviction, adjudging the defendant corporation guilty of a violation of the Sanitary Code and imposing a fine of $250, which judgment was entered after the taking of proof by this court upon the default of the defendant to appear either by any of its duly constituted officers or by counsel. At no time, after the filing of the information herein has there been any appearance by the corporation.
This motion necessitates an examination of the law as to the method of acquiring jurisdiction over a corporation and relative to all proceedings subsequent to the filing of an information.
Section 675 of the Code of Criminal Procedure, which provides the procedure for obtaining jurisdiction over a corporation charged with a crime upon the filing of a complaint or deposition before a magistrate, requires a ten days’ notice to be given to the defendant; and, thereupon, the ease is to he heard in a preliminary hearing. In certain cases under the Inferior Criminal Courts Act the magistrate may sit as a Court of Special Sessions. This summons must be served on the president or other head of the corporation, secretary, cashier or managing agent thereof at least five days before the return date. Code Crim. Pro. § 677.
When the charge has been examined and the proofs show that there is probable cause to believe that the corporation is
The magistrate having heard the proofs in this case and the defendant corporation having waived through counsel further examination, the corporation was duly ordered to answer the charge before the Court of Special Sessions. Depositions were filed as required by section 221 of the Code of Criminal Procedure. The district attorney accordingly filed an information in this court on June 10, 1924, alleging the commission of a misdemeanor by the defendant in manufacturing and having for sale on November 16, 1923, an alleged deleterious drug preparation or dangerous hair dye for human use; and that information, based upon the prior proceedings before the magistrate, gave the Court of Special Sessions jurisdiction over the subject-matter. (People v. Perrin, 170 App. Div. 375; Code Crim. Pro. § 743. See also, People v. Dillon, 197 N. Y. 254; People v. Frocks, 190 App. Div. 378; People ex rel. Edison Electric Illuminating Co. v. Kernochan, 160 id. 105; affd. 211 N. Y. 539; Inferior Crim. Courts Act, § 31.)
It appears from the indorsement on the original papers filed in this court that when this case was called for pleading, the defendant corporation failed to appear and on June 26, 1924, an inquest was taken and the corporation was adjudged guilty and fined as above stated.
The defendant, now appearing at the same term at which the inquest was taken, through counsel files a motion to vacate and set aside the inquest and asks for a trial on the information in this court.
This motion raises the question of jurisdiction. Claim is made in the moving papers that the defendant has not had any notice whatsoever of the filing of the information herein or of the pleading date, or of the hearing that has been termed an inquest thereon. I find no provision in the Inferior Criminal
In the case at bar the record is wholly devoid of any proof that such service of a notice or summons was made according to the requirements of the last-mentioned statute; or that any counsel duly authorized appeared on behalf of the corpora
This court, not having obtained jurisdiction of the person of the defendant in the manner prescribed by the statute, had no power to adjudge the defendant guilty and to impose any punishment.
The motion to set aside the judgment should be granted and the fine remitted and the defendant corporation should have an opportunity to plead and to be heard on the complaint set forth in the information herein.
Motion granted and case is ordered on the pleading calendar of this court for the date indicated.
Kernoghan, Oh. J., and Edwards, J., concur.
Ordered accordingly.