
    The People of the State of New York, Respondent, v. John S. Nash, Appellant.
    (Court of General Sessions of the Peace in and for the County of New York,
    June, 1902.)
    Crimes — Judgment of conviction reversed where the testimony is not returned on appeal.
    A judgment of a magistrate of the city of New York adjudging the defendant guilty of the offense of disorderly conduct must be reversed on his appeal where the return does not contain the evidence taken on the trial, it appearing that the magistrate failed to preserve it.
    Appeal from ,a judgment of the City Magistrate’s Court.
    Benjamin Patterson, for appellant.
    William Travers Jerome, District Attorney, for respondent.
   Foster, J.

This is an appeal from a judgment of the City Magistrate’s Court adjudging the defendant guilty of disorderly conduct. On this appeal questions (inter alia) are raised as to the rulings of the court below on the admissibility of evidence, and as to the sufficiency of the evidence to justify the conviction of the defendant. FTo evidence has been returned to this court, and it .appears, from the statement of counsel, that, through the oversight of the court below no evidence was preserved. Certainly no evidence is contained in the return of the court below.

The Court of Appeals in People v. Giles, 152 N. Y. 136; the Appellate Division in People v. Hines, 57 App. Div. 419; and this court in People v. Benison, 32 Misc. Rep. 366, and in many other eases have pointed out in no doubtful terms the propriety, as well as the necessity, of preserving the evidence whenever a case is heard and determined, and declare the failure to so preserve the testimony reversible error.

Why this plain and manifestly proper requirement of the law is so frequently disregarded is past finding out. It entails much unnecessary hardship and expense both to the people and to the unfortunate defendant, and merits condemnation. The judgment must be reversed, and a new trial ordered.

Judgment reversed and new trial ordered.  