
    THE CITY OF BUFFALO, Appellant, v. FREDERICK SCHLIEFER, Respondent.
    
      Givñ, action — a proceeding to recover a penalty is — a judgment of a justice’s court can only he reviewed on appeal.
    
    A proceeding instituted in a Justices’ Court by a city to recover the penalty imposed for a violation of a city ordinance is a civil action, and under section 351 of the old Code the judgment of the justice can only be reviewed by appeal.
    Appeal from an order of the Erie Special Term reversing a judgment and proceedings liad before one George Feldman, a justice of tbe peace in and for the city of Buffalo. Tbe respondent was charged before tbe justice with violating tbe provisions of sections 21 and 22 of chapter 10 of tbe ordinances of tbe city of Buffalo, which prohibit tbe selling of farm and garden produce except at “tbe groceries, stores and stands during market hours.” Tbe ordinances imposed a penalty of ten dollars for violation of them.
    Tbe respondent, upon being charged with such violation before tbe justice, denied it. There was evidence given on tbe trial of tbe issue upon both sides.
    The order appealed from was made oil the return of a writ of certiorari, issued to review tbe judgment.
    
      P. A. Matteson, for tbe appellant.
    
      G. P. Wheeler, for tbe respondent.
   Hardin, J.:

"Where a statute or an ordinance imposes a penalty, unless special modes are prescribed, tbe same is to be collected by an action at law. Such • an action is a civil action. (People v. County Judge of Rensselaer Co., 13 How., 400; People v. Colborne, 20 id., 381.) An action prosecuted to recover in behalf of a municipal corporation is none the less a civil action than one prosecuted by an individual. Tbe warrant in the Justices’ Court required tbe party to answer tbe city of Buffalo. Tbe action must be considered a civil one. It was not prosecutGd by or in behalf of tbe people. (Code of Pro., § 2.) The warrant upon which the respondent was arrested required him “ to answer unto the city of Buffalo for violation of the twenty-first and twenty-second section of the tenth chapter of laws and ordinances of the said city of Buffalo, entitled of markets,” etc. The justice “ fined ” him ten dollars and six dollars for costs. The justice’s return is dated August 16, 1879. August 5, 1879, a writ of certiorari was issued, signed by L. S. Oatman, special deputy clerk, returnable at a Special Term of this court.

At a Special Term held at Buffalo, Erie county, August 29,1879, the return was presented and the parties heard and the proceedings and adjudications of the said justice of the peace were held in all respects irregular, erroneous and void,” and they viere reversed. From that order and judgment on it the city of Buffalo has appealed to this court.

Section 351 of the Code of Procedure declared that the only mode of reviewing a justice’s judgment should be by an appeal as prescribed in chapter 5. That section and that chapter were in force when the justice rendered judgment herein, and it limited the right of the aggrieved party to an appeal.

Section 353 of chapter 5 of the Code required the notice of appeal to state the grounds upon which the appeal is founded.

The attempt to review the judgment of the justice by a certiorari returnable to the Special Term of this court was unauthorized. We do not see how the Special Term acquired any jurisdiction to review the justice’s judgment. Its order was, therefore, without warrant of law and should be reversed and the certiorari quashed. (People ex rel. Hallock v. Sleight, 2 Hun, 632, opinion of Talcott, J.) But it does not appear that the objection was taken in the Special Tern, and we must presume that, had it been, the same would have'' been sustained.

The writ may now be quashed, without costs to either party, as we must regard the whole proceeding irregular and unauthorized.

Order reversed, without costs, and writ quashed, without costs to either party.

Smith, P. J\, concurred; Haight, J"., not sitting.

So ordered.  