
    COUNTY COURT—KINGS COUNTY,
    March, 1911.
    THE PEOPLE v. WALTER K. THOMAS.
    (71 Misc. 365.)
    (1.) Procedure—Summary trials or other than on indictment as at COMMON LAW-REVIEW—PROCEDURE TO OBTAIN REVIEW.
    Since the enactment of the Inferior Criminal Courts Act (L. 1910, eh. 659) a city magistrate of the city of New York, in rendering judgment against a defendant convicted of disorderly conduct, acts not as a court but as a magistrate; and, under section 755 of the Code of Criminal Procedure, the affidavit and allowance of an appeal from the conviction must be personally delivered to the magistrate who tried the case.
    Motion to dismiss an appeal.
    
      John F. Clarke, district attorney (Peter P. Smith, assistant district attorney, of counsel), for motion.
    
      Purdy, Squire & Rowe (Allen C. Rowe, of counsel), opposed.
   Fawcett, J.:

The defendant was tried and convicted of disorderly conduct before a city magistrate, sitting in the City Magistrate’s Court of the city of New York, Second Division, Third District, on August 11, 1910, and fined ten dollars. On October 6,1910, an appeal was duly allowed to the County Court by a justice of the Supreme Court. Defendant filed the affidavit and allowance of appeal with the clerk of the said third district court. The clerk has made a return.

The district attorney moves to dismiss on the ground that the affidavit and allowance should have been delivered to the magistrate who presided at the trial and the return should have been. made by the magistrate, as prescribed in section 756, Code of Criminal Procedure.

The question at issue depends entirely on whether the magistrate presiding tried the issue as a magistrate or as a court.

Justices of the peace, beside their civil jurisdiction, have long acted as magistrates in issuing warrants for crimes, in conducting examinations and in trying those lesser charges which do not amount to misdemeanors, and as courts of special sessions in trying specified misdemeanors. In many cities and villages of the State police courts were subsequently established; the magistrates having all the power of the justices of the peace, except jurisdiction in civil matters. The recent decision in the case of People v. Gillette, 200 N. Y. 275, 25 N. Y. Crim. 45, involves a court of that nature.

Police courts are courts of special sessions within the meaning of the Code of Criminal Procedure. Code Grim. Pro., § 74.

Police magistrates or justices of the peace, in hearing and determining charges of misdemeanors over which they have jurisdiction, acts as courts of special sessions. In trying those lesser things not amounting to crimes they act as magistrates. People v. O’Neil, 117 App. Div. 825.

In appealing from judgments of such justices of the peace or police magistrates involving crimes, the affidavit and allowance of appeal should be delivered to the clerk of the court, if there is one. Code Crim. Pro., § 755. In appealing from the judgment of conviction rendered by one of the same judicial officers, involving those lesser things which are not crimes, but only conditions, the affidavit and allowance must be served on the magistrate rendering the decision.

Prior to the enactment of section 7, chapter 659, Laws of 1910, known as the Inferior Criminal Courts Act of the City of Hew York, the city magistrates of the city of Hew York could not act as courts of special sessions having jurisdiction over misdemeanors in any case. People v. Patterson, 38 Misc. Rep. 81, 16 N. Y. Crim. Rep. 508; People v. O’Neil, supra. In appeals from judgments rendered by them as such magistrates,, the affidavit and allowance had to be delivered to the magistrate personally in order to strictly conform to the provisions of section 755, Code of Criminal Procedure. And the return had to be made by the magistrate as provided by section 756 of the Code.

Section 72, chapter 659, of the Laws of 1910, makes the city magistrates’ courts police courts within the provisions of the Code, preserves to the city magistrates the power formerly possessed by them and confers the jurisdiction of a court of special sessions in cases of a plea of guilty to violating the Vehicle Law, first offense, and in cases of violation of the law for the prevention of cruelty to animals. The present city magistrates, in rendering judgment in cases of violation of the Vehicle Law, first offense, and in cases of violation of the law for the prevention of cruelty to animals, act as a court; and in case of appeal the affidavit and allowance would be properly delivered to the clerk of the court.

But in rendering judgment in such matters as disorderly conduct, they act as magistrates; and the affidavit and allowance must be delivered to the magistrate personally, in order to strictly comply with section 755 of the Oode of Criminal Procedure. The magistrate must personally make the return in compliance with section 756; and, in case the magistrate neglects or refuses to make such return, it may be compelled under section 757 of the Code. A further or amended return may be compelled under section 758 of the Code.

It is not necessary to decide whether or not a return by the clerk, where the judgment has been rendered by the magistrate acting as a court, would be sufficient on appeal. There are no provisions for the settling by the magistrate of the case on appeal, and it would be dangerous to hear appeals on records not settled or directly made by the magistrate presiding at the trial.

The defendant having in good faith attempted to perfect his ¡appeal, he will be permitted to deliver the affidavit and allowance to the magistrate within five days, and secure a proper return by the magistrate within the time prescribed by the Code. Upon his failure so to do, the motion will be granted. Submit .-order.

Ordered accordingly.  