
    SUPREME COURT—SPECIAL TERM—STEUBEN COUNTY,
    November, 1913.
    THE PEOPLE ex. rel. HERBERT A. HEMINWAY v. JOHN C. BOSTLEMANN, CITY JUDGE.
    (82 Misc. 629.)
    (1.) Bastardy—Who may institute ob prosecute proceedings—Jurisdiction—Code of Criminal Procedure.
    Section 840 of the Code of Criminal Procedure, which provides that in a bastardy proceeding the overseer of the poor “ Must apply to a justice of the peace or police justice in the county to Inquire into the facts of the case,” is not repugnant to a provision of a city charter that the city judge “ shall have the same jurisdiction and authority as the justice of the peace in bastardy proceedings under the law of this state, but shall not be required to associate with himself another magistrate.”
    (2.) Same—Code of Cbim. Pro., § 840.
    Both the said section of the Code of Criminal Procedure and the provision of the city charter must be read together, and, though said section went into effect after-the adoption of the city charter, it does not either expressly or by implication repeal it.
    (3.) Same—Constitutional Law—Relator arrested on warrant of City Judge—Writ of prohibition.
    Where relator was arrested on a warrant issued by the city judge in a bastardy proceeding and entered a plea of not guilty, and at his request the matter was adjourned, the city judge not having associated himself with another magistrate in the proceeding, relator was not entitled to a writ of prohibition to restrain the city judge from proceeding as under the charter he had jurisdiction, the provisions of said charter not being unconstitutional.
    Application for an absolute writ of prohibition.
    
      Monroe Wheeler, for relator.
    Claud V. Stowell, district attorney, for defendant city judge-judge.
    James O. Sebring, for defendant overseer of the poor.
   Clark, J.

The return to the alternative writ of prohibition heretofore issued in this matter shows that on the 25th day of October, 1913, relator was arrested in bastardy proceedings, on a warrant issued by the city judge of the city of Corning, and, on being taken before that official, entered a plea of not guilty, and at his request the matter was adjourned to November 3, 1913, the city judge not having associated another magistrate with him in the proceeding.

Relator has obtained an alternative writ of prohibition, and asks to have the city judge restrained from proceeding with the case, on the ground that he has no jurisdiction because section 840 of the Code of Criminal Procedure, which went into effect September 1, 1905, provides that in bastardy cases the overseer of the poor “ Must apply to a justice of the peace or police justice in the county to inquire into the facts of the case,” and that the city judge of Corning is not a justice of the peace or a police justice, and did not associate with him another magistrate.

The charter of the city of Corning (Laws of 1905, chap. 142) went into effect April 6, 1905, and, referring to the powers of the city judge, it provides as follows: “ Said city judge shall have the same jurisdiction and authority as the justice of the peace in bastardy proceedings under the laws of this state, but shall not be required to associate with himself another magistrate.”

The Code of Criminal Procedure, of which section 840 above quoted is a part, is a general statute, and it is not repugnant to the section of the Corning city charter above referred to, and, although it went into effect after the city charter was adopted, it does not either expressly or by implication repeal it. These two statutes should be read together, and the special statute is not repealed by a subsequent general statute, unless the intent to repeal it is manifest. Grimmer v. Tenement House Department, 204 N. Y. 370; People ex rel. N. Y., N. H. & H. R. R. Co. v. Willcox, 200 id. 423.

But if there was a question as to the jurisdiction of the city judge in this matter, it could be raised and settled by appeal, and in such a case the lower court should not be held up by an absolute writ of prohibition. Such a writ is a preventive process, and should never be restored to except in cases where it is absolutely necessary to protect a party’s rights, and where they cannot be safeguarded by appeal. People ex rel. Jones v. Sherman, 66 App. Div. 231; People ex rel. Aldhouse v. McCarthy, 41 Misc. Rep. 429; People ex rel. United Building M. Co. v. Special Term, 145 App. Div. 530.

The learned counsel for relator urges that the provision of the Corning city charter, above quoted, is unconstitutional, because it enlarges the jurisdiction of an inferior local court. I cannot agree with him in this contention.

Section 17 of article VI of the Constitution of the state of New York provides for the election of justices of the peace in towns and for justices of the peace and judges or justices of inferior courts for the different cities in such manner and with such powers, and for such terms, as are or shall be prescribed by law, and section 18 provides that inferior local courts of civil or criminal jurisdiction may be established by the legislature.

It will thus be seen by the Constitution itself the legislature was given the power to create a court like the City Court of Coming, prescribing the powers and length of term of the city judge. Gould v. Mahaney, 39 App. Div. 426; People ex rel. Holmes v. Lane, 53 id. 531.

In this case I think the city judge has jurisdiction specially conferred by the provisions of the city charter, and that such provisions are not unconstitutional.

It follows that the application for an absolute writ of prohibition must be denied, and the alternative writ is dismissed* but without costs.

Ordered accordingly.  