
    The People of the State of New York ex rel. Morris Cohen, Appellant, v. The Warden of the Third District Prison, Defendant. The People of the State of New York, Respondent.
    First Department,
    May 3, 1912.
    Municipal corporation — Hew York city — arrest for violation of Sanitary Code —right of magistrate to hold defendant for Court of Special Sessions — examination before magistrate.
    Where a defendant, arrested for a violation of section 68 of the Sanitary Code of the city of Hew York, is brought before the magistrate, and counsel for the board of health, pursuant to section 95 of the Inferior Criminal Courts Act of the City of Hew York, asks that he be held for trial at the Court oí Special Sessions, the magistrate may so hold him, fix his bail and commit him to the custody of the warden of the city prison until he gives such bail, although the attorney for the defendant demands an examination before the magistrate of the witnesses upon whose depositions the warrant was issued.
    
      Qncere, as to whether in New York county an examination before a magistrate after arrest is authorized in any case where the magistrate holds the person charged with crime to answer in the Court of Special Sessions.
    Appeal by the relator, Morris Cohen, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 1-st day of May, 1911, dismissing a writ of habeas corpus and remanding the relator.
    
      Alexander A. Mayper, for the appellant.
    
      Robert S. Johnstone, Assistant District Attorney, for the respondent.
   Laughlin, J.:

The relator was arrested pursuant to a warrant issued on information charging him with a violation of section 68 of the Sanitary Code. ;When he was brought before the magistrate, counsel for the board of health, pursuant to section 95 of the Inferior Criminal Courts Act of the City of Mew York (Laws of 1910,- chap. 659), asked that he be held for trial at the Court of Special Sessions. Oounsel-for the relator thereupon demanded an examination of the witnesses upon whose depositions the warrant had been issued. This request was denied, and the magistrate held the relator to answer the charge in the Court of Special Sessions, and fixed bail at $100 and issued a commitment committing him to the custody of the warden and keeper of the city prison of the city of Mew York until he gave such bail. The relator thereupon obtained a writ of habeas corpus, evidently with a view of presenting the question as to the right of the magistrate to hold him to answer in the Court of Special Sessions without an examination before the magistrate, for that and the right of the magistrate to isstie the commitment are the only questions presented on the appeal.

It is not controverted that the relator was duly arrested on a warrant duly issued for a violation of said section of the Sanitary Code, but it is contended that on the return of the warrant it was the duty of the magistrate, under sections 188, 190, 195 and 196 of the Code of Criminal Procedure, on the request of the relator, to examine the witnesses and thus determine whether a crime had been committed and whether there was probable cause to hold the relator to answer in the Court of Special Sessions, pursuant to the provisions of sections 20T and 208 of the Code of Criminal Procedure.

By the provisions of section 1112 of the Greater New York charter (Laws of 1901, chap. 466, as amd. by Laws of 1904, chap. 628), a violation of the Sanitary Code is declared to he a misdemeanor. It is not claimed that it would have been the duty of the magistrate to hold an examination if he were to try the relator as would have been his duty had not the counsel for the board of health requested that the trial he transferred to the Court of Special Sessions, hut it is insisted that, since by the request of the hoard of health to send the case to the Court of Special Sessions pursuant to section 95 of the Inferior Criminal Courts Act, the magistrate was ousted of jurisdiction to try the relator, the relator could not be held to answer in the other court without a preliminary examination if he requested it as he did. It is not argued that it was not competent for the Legislature to authorize the magistrate to hold the relator without examination to answer the charge in the Court of Special Sessions. The contention is that it was not so provided by statute. Section 95 of the Inferior Criminal Courts Act (Laws of 1910, chap. 659) provides, among other things, that a magistrate may, on complaint of a violation of the Sanitary Code “as in any other case of a criminal offense,” by warrant require the arrest of the person accused, and after arrest may, on “sufficient notice” to the department of health, proceed “summarily to try such person for such alleged offense.” It is, however, further provided in said section that upon application in behalf of the department of health made “before the trial is commenced, the trial of such person, together with the papers, shall be remitted to the Court of Special Sessions; ” and by said section jurisdiction is expressly conferred on the Court of Special Sessions to try each person on the charge, subject to the right of the accused “ as it may now exist,” to demand a jury trial. The learned counsel for the relator' contends that the provisions of section 221 of the Code of Criminal Procedure apply to cases where a person is arrested pursuant to the provisions of section 95 of the Inferior Criminal Courts Act for a violation of the Sanitary Code and is brought before a magistrate and the department of health requests that the trial be had in the Court of Special Sessions, and that it is, therefore, the duty of the magistrate on holding the accused to answer in the Court of Special Sessions in such case, as for other crimes, excepting the crime of libel, to return the warrant and depositions and statement of the defendant “if he have made one,” and all undertakings of bail or for the appearance of witnesses taken by him, to the district attorney, and that the crime must then be prosecuted in the Court of Special Sessions by an information made by the district attorney as required by section 742 of said Code. On that theory it is contended in behalf of appellant that the decision of this court in People v. Spier (120 App. Div. 786) and of the Court of Appeals in People v. Dillon (197 N. Y. 254) require a preliminary examination by a magistrate before he is authorized to issue a commitment. It is manifest that if the provisions of the Code of Criminal Procedure with respect to an examination after arrest are applicable, then the magistrate is not required in all such cases to transfer the trial to the Court of Special Sessions or to hold the accused for trial before that court, but only where he is satisfied from the evidence adduced on such examination that a crime has been copamitted and that there is reasonable and probable ground for believing that it was committed by the accused. The Inferior Criminal Courts Act, although but a re-enactment of existing law, is a later enactment than the sections of. the Code of Criminal Procedure providing for an examination before a magistrate, upon which counsel for the relator relies, and section 95 thereof expressly provides that both the trial and the papers in such case “ shall be remitted to the Court of Special Sessions ” on the request of the department of health to have the trial in that court. If the Legislature intended that the papers should be remitted to the district attorney, and that the prosecution in the Court of Special Sessions should be by information filed by him, it is. a reasonable inference that it would have so provided. It is quite evident from the fact that the Legislature commanded that the trial should be had summarily before the magistrate, unless the department of health requested that it be had in the Court of Special Sessions, that it was intended that the trial for such offenses wherever had should be had summarily. The command of the Legislature, that the trial and the papers on such request being made should be remitted to the Court of Special Sessions, indicates that it was intended that the trial should be taken up and summarily had in the Court of Special Sessions, as it would have been before the magistrate had the request for the transfer not been made. It is true that the Legislature has not expressly provided in the Inferior Criminal Courts Act for admitting the accused to bail in such cases, or for a commitment, either to answer before the magistrate, or before the Court of Special Sessions. The Legislature has, however, provided that after being arrested the accused cannot be tried until after reasonable notice to the board of health, to enable it to demand that the trial be transferred to the Court of Special Sessions, and evidently to enable it to present the evidence to sustain the prosecution wherever the trial be had. The offense is bailable, and it would not be a reasonable construction of the statute to hold that it was intended that the accused should be held in custody or confinement without bail to await the arrival of a representative of the department of health or the lapse of a reasonable time after notice to said department, or should the trial not be concluded at one session, or should it become necessary to adjourn it. It was contemplated by the Legislature, I think, that the other statutory provisions requiring admission to bail and commitment pending examination to answer a criminal charge, either before the magistrate or in another court, should be applicable to the extent of authorizing the magistrate to admit the accused to bail, and to commit the accused pending trial before him, or to answer in the Court of Special Sessions, according to circumstances. The Legislature, by omitting in this statute to make express provisions for the transfer of the accused to the Court of Special Sessions, must have contemplated that the accused might be admitted to bail for his appearance in the Court of Special Sessions or be held in custody; and since the warrant could only provide for his being brought before the magistrate, orderly procedure required-that a commitment be issued when it became necessary to transfer the trial to the Court of Special Sessions. That was done in the case at bar and, without approving the form, we are of opinion that the magistrate was authorized to issue it. We are of opinion, therefore, that the procedure followed in the case at bar was in conformity with the law, and that the order dismissing the writ and remanding the relator was proper.

The learned assistant district attorney contends broadly that, in no case in the county of New York,, where a magistrate holds a person charged with crime to answer in the Court of Special Sessions, is an examination before the magistrate after arrest authorized, and that such an examination is only required in said county, as is the rule in other parts of the State, when the accused is held to answer in another court by indictment; and the brief in support of that contention shows careful research and analysis of the -statutes and authorities. The point presented for decision on this appeal does not require a decision of the question in the broader aspect urged by the learned assistant district attorney, and it cannot now be decided, although we recognize the industry and ability with which it has been briefed and the importance of the question.

The order should be affirmed.

Ingraham, P. J., Clarice, Scott and Miller, JJ., concurred.

Order affirmed.  