
    Supreme Court — Appellate Division, First Department.
    July, 1903.
    THE PEOPLE EX REL. ABRAHAM SMITH v. JOHN E. VAN DE CARR.
    (86 App. Div. 9.)
    1. Jurisdiction—New York City Magistrate—Penal Code, Secs. 4, 5, 6.
    A New York' city magistrate has no jurisdiction to try a party accused of a felony or misdemeanor as defined in sections 4, 5 and 6 of the Penal Code.
    2. Same—Consolidation Act, Sec. 1458—Penal Code, Sec. 675..
    But the city magistrates have jurisdiction over offenses specified in section 1458 of the Consolidation Act, which declares that any person in the city and county of New York who commits any of the offenses defined in that section “ shall be deemed guilty of disorderly conduct that tends to a breach of the peace.” It was entirely competent for the Legislature to declare such conduct in the city of New York an offense and to provide for its punishment, even though it would not be a penal offense elsewhere, and a person convicted under subdivision 3 of said section is not entitled to be discharged on a writ of habeas corpus or certiorari, because the offense which he committed was also a misdemeanor under section 675 of the Penal Code.
    3. Same—Warrant of Commitment.
    The description of the offense contained in the warrant of commitment, viz., “ disorderly conduct tending to a breach of the peace ” was sufficient, and it was not necessary to its validity either that the subdivision of the section under which the conviction was had should • be specified or that the facts should he set up.
    
      4. Same—Writ of Certiorari.
    The writ of certiorari as a writ of review in criminal cases has been abolished, and now the only method of review in a criminal case is by appeal, and in the case of a conviction, at least, the writ of certiorari to inquire into the detention of the relator, is not more extensive and affords no greater .right or remedy than the writ of habeas corpus, and was designed to reach only those cases where the production of the body was unnecessary to the decision of the question to be presented; and it is not the province of this writ of certiorari to bring up the evidence for review.
    Appeal By the People of the State of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of March, 1903, sustaining writs of habeas corpus and certiorari theretofore allowed in behalf of the relator, and discharging him from the custody of the warden of the city prison.
    Henry G. Gray, for the appellants.
    Meyer London, for the respondent.
   Laughlin, J.:

The return of habeas corpus, shows that the relator was held by the warden of the city prison under a commitment of one of the magistrates of the city of New1 York, bearing date the 18th day of March, 1903, which recites that the relator was charged, on the oath of one John O’Eourke,. with having been on the 16th day of March, 1903, at the city of New York, in the county of New York, “ guilty of disorderly conduct, tending to a breach of the peace,” and that he was duly convicted of that offense before said magistrate upon competent testimony, and sentenced to the workhouse, in the city and county of New York, for the term of six months, pursuant to the provisions of section 707 of the Greater New York charter, and the warden was commanded to receive and detain the relator in the workhouse for the term of six months from the date of the commitment or until he should he discharged pursuant to law.

The relator contends that the city magistrates have no jurisdiction to try a party accused of a felony or misdemeanor as defined in sections 4, 5 and 6 of the Penal Code. This contention appears to be sustained by the provisions of the statute creating that court (Laws, of 1895, chap. 601, sec. 14; Greater N. Y. Charter [Laws of 1897, chap. 378], sec. 1406, as amd. by Laws of 1901, chap. 466, sec. 1409; see People v. Patterson, 38 Misc. Rep. 79), and we do not understand that it is controverted by counsel for the People. The relator contends that the charge against him constituted a violation of section 675 of the Penal Code, which provides that “ any person who shall by any offensive or disorderly act or language, annoy or interfere with any person or persons in any place,” shall be guilty of a misdemeanor; but this is not the statute under which the relator was tried and convicted, and for this reason as well as upon the ground that the magistrate did not have jurisdiction the conviction could not be sustained thereunder. The relator was convicted under section 1458 of the Consolidation Act (Laws of 1882, chap. 410), which provides as follows :

Every person in said city and county shall be deemed guilty of disorderly conduct that tends to a breach of the peace, who shall, in any thoroughfare or public place in said city and county, commit any of the following offenses, that is to say: ...
3. Every person who shall use any threatening, abusive, or insulting behavior, with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned.”

It clearly appears and is uncontroverted that the city magistrates have jurisdiction over the offenses specified in this section, and the section has been continued in force. (Greater N. Y. Charter, sec. 1610, as amd. by Laws of 1901, chap. 466; People ex rel. Frank v. Davis, 80 App. Div. 448.)

It was entirely competent for the Legislature to declare such conduct in the city of Hew York an offense and to provide for its punishment, even though it would not he a penal offense elsewhere, or would be a crime of a higher degree if committed elsewhere. The description of the offense contained in the warrant of commitment, viz., “ disorderly conduct, tending to a breach of the peace,” was sufficient, and it was not necessary to the validity of the commitment either that the subdivision of the section under which the conviction was had should be specified or that the facts should be set up-. (People ex rel. Frank v. Davis, supra; People v. Johnson, 110 N. Y. 141; People ex rel. Allen v. Hagan, 170 id. 46; Gray’s case, 11 Abb. Pr. 56; Case of the Twelve Commitments, 19 id. 394, 401.) It is not important for us to determine whether, as contended by counsel for appellants, “ disorderly conduct ” would be a sufficient designation of the offense, for both in the warrant of commitment and in the return of the magistrate it appears that the relator was convicted of “ disorderly conduct that tends to a breach of the peace.”

The writ of certiorari as a writ of review in criminal cases has been abolished, and now the only method of review in a criminal case is by appeal. (Code Crim. Proc., sec. 515; People ex rel. Taylor v. Forbes, 143 N. Y. 219; Code Civ. Proc., sec. 2148.) In the case of a conviction, at least, the writ of certiorari to inquire into the detention of the relator, a remedy incorporated into the Code of Civil Procedure with the habeas corpus provisions (sec. 2015 et seq.), is not more extensive and affords no greater right or remedy than the writ of habeas corpus, and was designed to reach only those cases where the production of the body was unnecessary to the decision of the question to be presented; and it is not the province of this writ of certiorari to bring up the evidence for review. (People ex rel. Bungart v. Wells, 57 App. Div. 140, 151; People ex rel. Taylor v. Seaman, 8 Misc. Rep. 152; People ex rel. Danziger v. P. E. House of Mercy, 128 N. Y. 180, 184.) A practice-has sprung up in this department of issuing both writs in cases of detention before or without conviction. This is acquiesced in on the ground of convenience, in having the magistrate-certify the information or evidence upon which the relator has been held and which the court in such cases examines to see if there is any evidence of guilt, rather than because any warrant for such practice can be found in the Code of Civil Procedure. In cases of conviction, however, the inquiry, both upon the writ of habeas corpus and upon a writ of certiorari to inquire into the detention, is whether the magistrate who issued the warrant of commitment had jurisdiction of the- offense of the relator and to impose the sentence-, and whether it had expired, but the decision may not be reviewed. (Code Civ. Proc., secs. 2016, 2019, 2082; People ex rel. Tweed v. Liscomb, 60 N. Y. 570; People ex rel. Danziger v. P. E. House of Mercy, supra. If the magistrate had jurisdiction of the subject-matter and the-warrant of commitment is valid in form, reciting the jurisdictional facts, it has been held by the Court of Appeals that the-burden is upon the relator to impeach its validity by traversing the return, in which event the whole question relating to- the jurisdiction of the magistrate may be inquired into-. (People ex rel. Danziger v. P. E. House of Mercy, supra, 185, 189.) It has also been held by the same court that in such case the warrant of commitment, even though issued by an inferior court, is conclusive, and the facts may not be inquired into, even though the return be traversed. (People ex rel. Kuhn v. P. E. House of Mercy, 133 N. Y. 207.) In the case at bar the magistrate had jurisdiction to try offenses designated as disorderly conduct, tending to a breach of the peace, under section 1458-of the Consolidation Act, and the warrant of commitment recites the jurisdictional facts, and the return to the writ of habeas corpus presenting the commitment was not traversed. It, therefore, appeared that the conviction was authorized; that warrant of commitment was duly issued, and that the relator was legally in the custody of the warden of the city prison.

The magistrate to whom the writ of certiorari was issued, and upon whom it was served, made return that the relator was tried before him at the first district City Magistrate’s Court, in the city of Mew York, on the 16th day of March, 1902, charged upon the deposition of John O’Eourke, which was thereto annexed, with “ dis. conduct;” that upon the trial the said O’Eourke, after being duly sworn, was examined in the presence and hearing of the relator, and testified that the relator “ did at the time and in the public place mentioned in said complaint make a noise, disturbing the peace; and did then (and) there obstruct the free passage of pedestrians on the sidewalk;” that the magistrate thereupon convicted the relator “ of being guilty of such disorderly conduct charged in said complaint, and as in my opinion tended to and might provoke a breach of the public peace,” and thereupon committed him to the workhouse for the period of six months^ or until he should be discharged according to law. The information filed against the relator and annexed to the return is an affidavit by a police officer charging that on the day in- question, at the city and county of Mew York, the relator “ was in Walker street, and that he was making a noise, disturbing the peace, and did then and there obstruct the free passage of pedestrians on the sidewalk.”

The charge was substantially in accordance with the proof given upon the trial, from which the inference of guilt was drawn by the magistrate, hut even if that were not so, it would not be reviewable by habeas corpus proceedings. All that was essential to the jurisdiction of the magistrate is that the relator was arraigned before him and apprised of the nature of the offense with which he was charged and for which he was to he tried, and afforded an opportunity to defend, and was then duly tried thereon. Thus, if we should treat the return to the writ of habeas corpus as traversed and the return to the writ of certiorari as the evidence adduced on the hearing thereon, still it appears that the magistrate had jurisdiction of the offense of the relator, had authority to try him and impose the sentence, and there was some evidence tending to show guilt, so that within all the authorities the writs should have been dismissed; and whether all of these things are essential to jurisdiction and may be inquired into on habeas corpus after conviction, perhaps, should not, in view of the conflicting decisions, be determined upon this appeal. If the offense was committed in the presence of a police officer he might have arrested the relator without any warrant, and we know of no law in such case requiring that a formal information be filed before -the prisoner is arraigned.

It follows that the order should be reversed and the writs dismissed.

Van Brunt, P. J., Patterson, Ingraham and Hatch, J'J., concurred.

Order reversed and writs dismissed.  