
    SUPREME COURT—APP. DIVISION—THIRD DEPT.,
    Sept. 27, 1912.
    THE PEOPLE v. CYR HERBERT.
    (152 App. Div. 579.)
    (1.) Practice—Dismissal of indictment on motion—When defendant SHOULD BE LEFT TO HIS DEMURRER.
    The granting of a motion to set aside a defective indictment is within the discretion of the court; but, unless the question be free from doubt, the court ought not to grant it, but should leave the defendant to his demurrer or motion in arrest of judgment.
    (2.) Same—Appeal by People lies only in cases covered by § 518, .Code of Grim. Pro.
    Writs of error and certiorari have been abolished in criminal actions, and an appeal by the People lies only in those cases provided for in section 518 of the Code of Criminal Procedure. No appeal by the People lies from an order of the recorder of a city dismissing an indictment or information, as there is no statutory provision therefor.
    Motion by the defendant, Cyr Herbert, to dismiss an appeal taken by the People of the State of Hew York from a determination of the Recorder’s Court of the- city of Albany, entered on the 26th day of March, 1912, dismissing the information herein upon the ground of insufficiency.
    
      Rollin B. Sanford, for the appellant.
    
      Daniel J. Dugan, for the respondent.
   Pee, Cueiam :

The respondent was arrested upon an information which sought to charge him with keeping and maintaining a disorderly house in violation of section 1146 of the Penal Law. Upon his arraignment in the Court of Special Sessions of the city of Albany, held by the recorder of said city, he appeared specially and moved to dismiss the information upon the ground of insufficiency, which motion was granted, and its propriety was thereafter attempted to be raised by this appeal.

As to the merits of the appeal thus taken, we.may say in brief that as the recorder has handed down no opinion, we are at a loss to know in what respect he considered the information in question defective. Eor are we aided in this matter by the points of respondent’s counsel, although it is therein stated that the recorder followed the case of People v. Miller (81 App. Div. 255, 17 N. Y. Crim. 273), which, however, seems clearly distinguishable from the case at bar. But even if this information was in fact insufficient and might be so held upon demurrer, we think its insufficiency was not so apparent and free from doubt as to require the recorder to dismiss it upon motion. The rule is thus laid down by the'Court of Appeals in People v. Davis (56 N. Y. 95, 100): “ It is in the discretion of the court whether or not to set aside a defective indictment upon motion; and unless the question is free from doubt, the court ought not to do it, but leave the counsel to his demurrer, or motion in arrest of judgment.” (See, also, Abb. Trial Brief Crim. Cas. 65, 66, and cases cited.)

But whatever may be our views as to the sufficiency of this. information, we find no provision for an appeal from the determination of the recorder upon this point. By section 23 of chapter 284 of the Laws of 1872, appeal in the Recorder’s Court is made similar to appeals in a Court of Sessions, and the powers of the former Courts of Sessions are now vested by the Constitution (Art. 6, § 14) in the County Courts. The Code of Criminal Procedure by section 515 has abolished writs of error and of certiorari in criminal actions, and by section 518 has provided that the People may appeal in two cases only, neither of which is an appeal from an order dismissing an indictment or information. We accordingly think that the granting of the motion to dismiss was not reviewable upon appeal. (See, also, People v. Petrea, 1 N. Y. Crim. Rep. 198, 203, and Abb. Trial Brief, supra.)

The appeal should be dismissed, without costs.

All concurred.

■Motion granted.  