
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN MURRAY v. THE JUSTICES OF THE COURT OF SPECIAL SESSIONS OF THE PEACE IN AND FOR THE CITY AND COUNTY OF NEW YORK.
    
      Qomt of Special Sessions — jm'isdiction of— Mai by jury in.
    
    Ceetioeaex to the Court of Special Sessions to review a conviction of tbe relator.
    Tbe return showed that tbe relator was arrested upon a complaint made in due form, before one of tbe police justices of tbe city, upon a charge of assault and battery, and that on being brought before such magistrate, be elected to be tried for such alleged offense by tbe Court of Special Sessions of tbe Peace, and was committed to await such trial, and required to find bail, in tbe sum of $500, for bis appearance at tbe Court of Special Sessions, to answer to tbe complaint preferred against him for said offense.
    Subsequently, but in what manner it does not appear, be was brought before Mr. Justice DoNOhue, of tbe Supreme Court, and there entered into a bond or recognizance for bis appearance at tbe next term of tbe Special Sessions. Tbe recognizance recited tbe above facts. Tbe complaint and papers were then transmitted to tbe clerk of tbe Court of Special Sessions, for trial at said court. After-wards, and on tbe 25th of September, 1877, tbe Court of Special Sessions was duly organized at tbe balls of justice, in tbe city, and tbe relator was brought before tbe court for trial upon said complaint. Tbe complaint was read to him, and be was called upon to plead thereto, and thereupon be pleaded not guilty. Such plea was duly entered in tbe minutes of tbe court. Tbe court thereupon then proceeded to try tbe issue, and witnesses were produced by the complainant and the relator; and upon such trial the relator was found guilty and sentenced to imprisonment for the term of four months.
    The court, at General Term, said: “ The only questions raised here relate to the jurisdiction oi^the Court of Special Sessions. By section 5 of chapter 331 of the Laws of 1855 (which may be found cited in third Revised Statutes [Banks’ 6th ed.], 242), jurisdiction is given to the Court of Special Sessions over all complaints for misdemeanors, made before police justices, unless the court shall send the case to the General Sessions, or unless the accused, when brought before the committing magistrate, shall elect to have his case tried in the General Sessions.
    The relator, in this case,' elected to be tried at the Special Sessions, and he entered into a recognizance'reciting such election and conditioned for his appearance before such Court of Special Sessions. On his appearing for trial1 he made no objection that the case was not properly before the court, and no claim that it should be sent to the General Sessions, but entered the plea of not guilty, and submitted himself to trial before that court, as though all preliminary steps had been in all respects regular and proper. It is too late for him to object to any want of formality in any proceeding antecedent to his trial, for all matters of form must be deemed to be waived by his appearing before the Court of Special Sessions, joining issue and proceeding to trial, without the suggestion of any objection to the regularity of any proceeding or the jurisdiction of the court.
    The Court of Sessions existed prior to the first Constitution of the State, which was adopted in 1777. It was first created by the Colonial legislature in 1744, and has ever since, with various changes and modifications made by the legislature, existed in this State.
    Trial by jury was wholly unknown m that court until it was created sub modo, by the act of 1824. The common-law jury however, has never existed in that tribunal. {In the Matter of Sweatmcm, 1 Cow., 144, 151, note <?; Murphy v. People, 2 id., 815, 818, note b / People v. Riley, 5 Parker Crim., 401; People ex rel. Walker v. Special Sessions, 4 Hun, 442.)
    
      We do not think that there is any force in the position urged by the learned counsel for the relator, that the relator was entitled to a trial by jury, because he had given bail for his appearance before the Court of Special Sessions. Undoubtedly that right would have existed if he had entered into a recognizance for his appearance at the General Sessions, and had appeared in person, pursuant to such recognizance, for trial at the General Sessions. It is clear, in such case, that his right to trial by common-law jury would have been complete and could not have been waived even by himself. {Ocmeemi v. The 'People, 18 N. Y., 128 ; Qribger v. Hudson Rrner R. R. Go., 2 Kern., 19S; People v. Kewnedry, 2 Parker, 312.)
    If the recognizance, or bond, given for his appearance at the Special Sessions were altogether irregular or extra judicial, it nevertheless could not have the effect to transfer the case, which, by the election of the relator, was to be tried in the Court of Special Sessions, to another tribunal. But if it were regularly and properly taken, the appearance of the relator before the Sessions was in accordance with its exigency and requirement, and therefore it cannot be held to have taken away the jurisdiction of that court.
    Under the statutes creating the Court of Special Sessions of this State, trials are had before three police justices without a jury. No provision is made either for the common-law jury or the statutory jury provided for Courts of Special Sessions in other counties of the State. We are unable to see any error in the jiroceedings or any want of jurisdiction in the court.
    The writ should be dismissed and the proceedings of the Special Sessions affirmed.”
    
      Wm. F. Kintzmg, for the relator. B. K. Phelps, for the respondent.
   •Opinion by

Davis, P. J.;

Beady and IN&alls, JJ., concurred.

Writ dismissed, proceedings affirmed.  