
    PEOPLE ex rel. THE COMMISSIONERS OF PUBLIC CHARITIES AND CORRECTIONS, on the complaint of SUSANNA SANDERS, Respondent, v. JOHN J. SANDERS, Appellant.
    
      Certiorari—Disorderly person—Eoidence—•cannot he objected to on appeal when no exception was taken to its admission.
    
    Upon a common-law certiorari it is the duty of the court to examine the evidence, to ascertain whether there was any competent proof of the facts necessary to authorize the adjudication made, and whether, in making it, any rule of law affecting the rights of the parties has been violated.
    
      People v. Smith (45 ST. Y., 776) followed.
    The appellate court will not, however, review a decision of a mere question of fact, upon the weight of evidence.
    
      Upon the trial of the relator, on the charge of being a disorderly person, his wife was examined as a witness against him. Upon certiorari to review his conviction, the relator insisted that she was not a competent witness. Held, that as no objection was made at the trial to the admission of the evidence, the relator could not now raise any question as to its competency
    Certiorari to the Court of Special Sessions, to review the .proceedings of that court on appeal from an order made by one of the police justices of the city of New York, adjudging the appellant, John J. Sanders, to be a disorderly person, in having abandoned his family, and directing that he pay, or cause to be paid, to the commissioners of charities and corrections, six dollars weekly, for the support of his family.
    
      J. H. Whitélegge, for the appellant.
    
      H. M. Buggies, for the respondent.
   Lawrence, J.:

The appellant, having been convicted before Police Justice Bixby of having abandoned his wife and family, was adjudged by the justice to be a disorderly person, and was ordered to pay to the commissioners of charities and corrections the sum of six dollars weekly, for and toward the support of his family, during the period of one year, etc. Thereupon the appellant gave the bond provided for by section 24 of part 1, title 6, chapter 20 of the Revised Statutes, and appealed to the Court of Special Sessions. That court, having heard the allegations and proofs, affirmed the order and judgment of the justice, and the case now comes before this court upon a writ of certiorari. The certiorari is a common-law certiorari. It was formerly held, that, upon such a writ, the court could not go beyond the question, whether the inferior tribunal had jurisdiction over the parties and subject-matter. Recent cases have overthrown this doctrine, and the rule now existing, is laid down by Justice Grover, in the case of the People v. Smith, in which he says: It must now be regarded as settled, in this State, that it is the duty of the court * * * to examine the evidence whether there was any competent proof of the facts necessary to authorize the adjudication made, and whether, in making it, any rule of law affecting the rights of the jparties has been violated.”

A variety of Objections were urged by the appellant’s counsel against the legality of the conviction, on the argument before this court.

I. It appeared that the parties had formerly resided at Bricks-burgh, in the State of New Jersey, and that, in December, 1872, the complainant, Susanna, had made a complaint against the defendant, for cruelly beating her and threatening to kill her, and for inflicting bodily injury upon her, and that an examination was had before a justice of the peace, in New Jersey, on the said complaint, which resulted in the discharge of the defendant.

It is claimed, on the part of the appellant, that it was on this occasion that his wife left him, and that the present charge is for the same conduct as was the subject of investigation before the justice in New Jersey, and that, therefore, the defendant has been twice put in jeopardy for the same offense. The point need only be stated, to show that the two charges are not for the same offense, and that the judgment, rendered by the justice of the peace in New Jersey, could have no bearing upon the question before the police justice and the Court of Special Sessions.

II. As to the point, that the police justice before whom the charge was originally heard, was disqualified to sit as a member of the Court of Special Sessions which heard the appeal, it is sufficient to say, that the record shows that the Court of Special Sessions was composed of Justices Led with, McQuade and Hohah.

III. The complaint before the police justice was made by the wife, Susanna Sanders, and she was examined as d witness at the hearing before the justice, and also on the trial on appeal before the Special Sessions. It is objected that she could not legally be a-witness against the defendant on these proceedings. The point, however, cannot be maintained upon this appeal, for the reason that, although the defendant appeared by counsel, no objection was taken to the competency of the wife as a witness, and there is no exception which enables the appellant to discuss the question. In Quin v. Lloyd, a party was permitted to testify, without objection, to transactions between himself and a deceased person, in an action between him and the personal representatives of the deceased. The other party then moved to strike out the testimony, and the referee, before whom the cause was tried, having granted the motion, the Court of Appeals held that the referee erred.

Judge Woodruff says, in that case: A party against whom a witness is called and examined, cannot lie by and speculate on the chances; first learn what the witness testifies, and then, when he finds the testimony unsatisfactory, object either to the competency of the witness, or to the form or substance of the testimony.” Without intending, therefore, to express any opinion as to the wife’s competency as a witness in these proceedings, it is entirely clear that the appellant, having failed to object to her as a witness at the trial, cannot raise the question on this appeal.

IT. There certainly was evidence before the court below, which strongly tended to show that the appellant had abandoned his wife and family, and which is sufficient to support the judgment. The rule is, that upon a certiorari the appellate court will not review a decision of a mere question of fact, upon the weight of evidenee. T. There were some other questions discussed by the appellant’s counsel' on the argument, which I have examined, but which do not seem to me to affect the validity of the conviction and order, and I am therefore in favor of affirming the judgment appealed from, with costs.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed, with costs. 
      
       2 R. S., 911 (5th ed.), and see Laws 1860, page 1008.
     
      
       45 N. Y., 776.
     
      
       See also People v. Board Police, 39 N. Y., 506; People v. Assessors of Albany, 40 id., 154; Mullins v. People, 24 id., 404.
     
      
       Ingersoll v. Bostwick, 22 N. Y., 425.
     
      
       41 id., 349.
     
      
      
         People v. Board of Police, 39 N. Y., 512, per Woodruff, J.
     