
    The People of the State of New York, Respondent, v. Arnold Schildhaus, Appellant.
    Submitted March 28, 1960;
    decided May 19.1960.
    
      Harry H. Lipsig for appellant.
    I. The sustaining of the writ of habeas corpus by the Supreme Court is collateral estoppel by judgment of the precise question litigated, namely, the jurisdiction of the Magistrates’ Court as to the person of defendant and of the subject matter. (People ex rel. Hahn v. Haines, 1 A D 2d 263; People ex rel. Lawrence v. Brady, 56 N. Y. 182; People ex rel. Sabatino v. Jennings, 221 App. Div. 418, 246 N. Y. 624; People ex rel. Kipper v. Ellinger, 239 App. Div. 647; People ex rel. Pierce v. Howe, 218 App. Div. 273; People ex rel. Meyer v. Warden, 269 N. Y. 426; People ex rel. Bailey v. McCann, 222 App. Div. 465; People ex rel. Clark v. Keeper of N. Y. State Reformatory, 176 N. Y. 465; People ex rel. Wachowicz v. Martin, 293 N. Y. 361; People ex rel. Tweed v. Liscomb, 60 N. Y. 559; People ex rel. Battista v. Christian, 249 N. Y. 314; People ex rel. Stabile v. Warden of City Prison of City of N. Y., 202 N. Y. 138; People ex rel. Brinkman v. Barr, 248 N. Y. 126; People ex rel. Marcley v. Lawes, 254 N. Y. 249; Post v. Lyford, 285 App. Div. 101; Williams v. State of New York, 9 A D 2d 415.) II. The City Magistrates’ Court of the City of New York does not have jurisdiction to try an offense punishable by a maximum penalty of one year in jail and a $1,000 fine provided for violation of sections D26-3.1 and D26-3.2 of the New York City Multiple Dwelling Law. (Wynehamer v. People, 13 N. Y. 378; People ex rel. Cosgriff v. Craig, 195 N. Y. 190; Matter of Cooley v. Wilder, 234 App. Div. 256; People v. Lyon, 99 N. Y. 210; People v. Bellinger, 269 N. Y. 265; Matter of Wilson, 114 U. S. 417; People v. Kraft, 229 App. Div. 281.)
    
      Charles H. Tenney, Corporation Counsel (Irving Genn and Seymour B. Quel of counsel), for respondent.
    I. The Magistrates’ Court had jurisdiction over the person of defendant and the subject matter. It, therefore, had jurisdiction to hear and determine the case. (People v. Levine, 308 N. Y. 685; People v. James, 4 N Y 2d 482; People v. Scott, 3 N Y 2d 148; People v. Schildhaus, 17 Misc 2d 825; People v. Belcher, 302 N. Y. 529; People v. Hippie, 263 N. Y. 242; People v. Love, 306 N. Y. 18; People v. Cook, 8 N. Y. 67; United States v. Mallard, 40 F. 151; Atwood v. State, 146 Miss. 662; People v. Dileo, 194 App. Div. 793; People ex rel. Mertig v. Johnston, 186 Misc. 1041; People v. Hagan, 138 Misc. 771; Dodge v. Cornelius, 168 N. Y. 242; Matter of Cooley v. Wilder, 234 App. Div. 256; People v. Look-stein, 78 Misc. 306; People ex rel. Burke v. Fox, 205 N. Y. 490; 
      People v. Grogan, 260 N. Y. 138; People ex rel. Gross v. Adams, 270 App. Div. 607, 296 N. Y. 604.) II. The Appellate Part of Special Sessions was not bound by the sustaining of a writ of habeas corpus by the Supreme Court, Bronx County. (People ex rel. Schildhaus v. Dros, 17 Misc 2d 398; People ex rel. Doyle v. Atwell, 232 N. Y. 96; People ex rel. Stolof v. Schleth, 252 App. Div. 784; People ex rel. Starks v. Batten, 49 Hun 606.) III. Defendant’s guilt was established beyond a reasonable doubt. (Lifschitz v. O’Brien, 143 App. Div. 180.) IV. The appeal is subject to dismissal without notice, having been brought on for argument more than 90 days after the date of the notice of appeal in disregard of section 536 of the Code of Criminal Procedure.
   Fuld, J.

The defendant was convicted, after a trial in the Magistrates’ Court of the City of New York, of violations of state and municipal dwelling laws and fined $500 or, in default, 30 days in prison. Electing not to pay the fine, the defendant surrendered and began his term of imprisonment. He subsequently sued out a writ of habeas corpus in the Supreme Court, Bronx County, challenging the jurisdiction of the Magistrates’ Court. The Supreme Court sustained the writ and directed the defendant’s discharge upon the ground that the information on which he had been prosecuted was jurisdictionally defective, that the Magistrates’ Court had been without jurisdiction to try him and that its judgment of conviction was consequently void (People ex rel. Schildhaus v. Dros, 17 Misc 2d 398).

The defendant’s appeal from the judgment of conviction, taken prior to the initiation of the habeas corpus proceeding, thereafter proceeded in the Appellate Part of the Court of Special Sessions and resulted in a judgment of affirmance. This appeal is from that judgment of affirmance. The People have not taken an appeal from the order sustaining the writ of habeas corpus, although, we understand, their time to do so has not yet expired.

Until it has been set aside or reversed, the order of the Supreme Court sustaining the writ of habeas corpus constitutes a final and binding determination that the judgment of conviction of the Magistrates’ Court was “ coram non judice arid void”. (People ex rel. Tweed v. Liscomb, 60 N. Y. 559, 571; see, also, Waterman v. State of New York, 2 N Y 2d 803; Nastasi v. State of New Yorh, 300 N. Y. 473; of. Mercein v. People, 25 Wend. 64, 99.) As long as that order stands, the judgment of conviction must be regarded as a nullity (see People ex rel. Battista v. Christian, 249 N. Y. 314, 321; People ex rel. Wachowicz v. Martin, 293 N. Y. 361, 365), even though the order itself may be erroneous. (See Linton v. Perry Knitting Co., 295 N. Y. 14,17; People ex rel. Bailey v. McCann, 222 App. Div. 465, 466.) In this posture of the record, the appeal taken from the judgment of conviction to the Appellate Part of Special Sessions was necessarily rendered academic and should have been so treated. (Cf. People ex rel. Stencil v. Hull, 246 N. Y. 584; Delavan v. New York, N. H. & H. R. R. Co., 216 N. Y. 359; Cohen and Karger, Powers of the New York Court of Appeals, pp. 413:15.)

Although the challenge to the jurisdiction of the Magistrates’ Court could have been raised by the defendant on appeal from the judgment of conviction (see People v. Scott, 3 N Y 2d 148), and although that might have been a more orderly and regular method of procedure, the right to invoke habeas corpus, “ the historic writ of liberty ”, “ the greatest of all writs”, is so primary and fundamental that it must take precedence over considerations of procedural orderliness and conformity. (See U. S. Const., art. I, § 9; N. Y. Const., art. I, § 4; People ex rel. Tweed v. Liscomb, 60 N. Y. 559, 566, 591, supra; People ex rel. Sabatino v. Jennings, 246 N. Y. 258, 260.)

The judgment of affirmance appealed from must, therefore, be reversed. A question is presented, however, as to the appropriate disposition to be made in view of the People’s avowed intention to appeal from the order in the habeas corpus proceeding. This circumstance requires that we reverse and remit the case to the Appellate Part of Special Sessions, with directions to withhold consideration of the appeal from the judgment of conviction pending final determination of the People’s contemplated appeal from the order sustaining the writ of habeas corpus. In the event that the habeas corpus order is affirmed, or no timely appeal taken from it, the Appellate Part will be required to dismiss the defendant’s appeal from the judgment of conviction as academic.

The judgment appealed from should be reversed and the matter remitted to the Appellate Part of the Court of Special Sessions of the City of New York for further proceedings not inconsistent with this opinion.

Chief Judge Desmond and Judges Dye, Froessel, Van Voorhis, Burke and Foster concur.

Judgment reversed, etc.  