
    People v. Carr.
    
      (Supreme Court, General Term, Fourth Department.
    
    November, 1889.)
    Criminal Law—Appealable Order—Costs against Prosecutor.
    Code Grim. Proc. N. Y. §§ 719, 720, relating to judgment in special sessions, provide that if defendant be acquitted, and the jury find that the prosecution was malicious, or without probable cause, the court must order the prosecutor to pay the costs of the proceeding, which if he fail to do, or to give satisfactory security therefor, the court may enter judgment for the amount thereof, which may be enforced in the same manner as a judgment rendered by a justice’s court, held by a justice of the peace. Held, that this is a judgment in a criminal action, and there is no appeal from it allowed by Code Civil Proc. §§ 3044, 3045, which provide for appeals to the county court from judgments rendered by justices of the peace in civil actions.
    Appeal from Otsego county court.
    The defendant, A. B. Carr, was charged with larceny, B. A. Andrus being the prosecutor. Code Grim. Proc. M. Y. §§ 719, 720, relating to judgment in courts of special sessions, provide that when the defendant is acquitted, either by the court or the jury, if the court certify upon its minutes, or the jury find, that the prosecution was malicious, or without probable cause, the court must order the prosecutor to pay the costs of the proceeding, and that if he do not pay the costs, or give security therefor, the court may enter judgment against him for the amount thereof, which may be enforced in the same manner as a judgment rendered by a justice’s court, held by a justice of the peace.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      W. J. Palmer, for appellant. Charles T. Brewer, for the People.
   Martin, J

The defendant was arrested for petit larceny, on the complaint of the appellant, and tried before a court of special sessions in Otsego county. A jury was called by the defendant. The trial resulted in a verdict of “Mot guilty.” The jury also found “that the prosecution was malicious.” The court thereupon ordered the appellant, who was the prosecutor, to pay the costs of the proceedings, which amounted to $12.50. The costs were not paid, nor did the appellant give security to pay the same to the county within 30 days. The court then entered judgment against the appellant for the amount of such costs. From that judgment the appellant appealed to the Otsego county court, where the appeal was dismissed. An appeal was then taken to this court from the order of the county court dismissing such appeal.

The sole question presented on this appeal is whether the appellant had a right of appeal to the county court from the judgment thus entered. That the right of appeal in such a case is not given by section 749 of the Code of Criminal Procedure, was held in People v. Norton, 33 Hun, 277, 2 N. Y. Crim. R. 322, and is admiLUl by the appellant. The appellant claims that the right is given by sections 3044 and 3045 of the Code of Civil Procedure. Those sections provide that the only mode of reviewing a judgment rendered by a justice of the peace in a civil action is by appeal to the county court. It will be observed that the right of appeal there given is limited to an appeal from a judgment rendered in a civil action, and no provision is made for an appeal in any other. Therefore, unless the judgment sought to be reviewed can properly be said to have been rendered in a civil action, it is quite obvious that no authority for this appeal can be found in the sections mentioned. Thus, the question is presented whether the judgment entered by the court of special sessions in this case was a judgment rendered in a civil action. That the trial, verdict, and order to pay costs were had, rendered, and made in a criminal, and not in a civil, action is not denied. But the appellant’s claim is that the judgment was “a civil judgment, and must be enforced in all respects as if rendered in a civil action.” While it must be admitted that such a judgment, when rendered, is to be enforced in the same manner as a judgment rendered by a justice’s court, yet it does not follow that the judgment is rendered in a civil action, nor that it falls within the provisions of the Code of Civil Procedure relating to appeals in civil actions. That this was a criminal action there can be no doubt, and we know of no process by which such an action could be transformed into a civil action. The right given by the Code of Criminal Procedure to impose costs upon the prosecutor, where the prosecution is found to have been malicious, is a mere incident to the action, and the proceeding to enforce their collection is a proceeding in the action. The judgment is to be entered by the court in which the action is tried, and not by the justice, acting in his capacity as a civil magistrate. Code Orim. Proc. § 720. It was not intended that the provisions of section 720 should have the effect to change the action from a criminal to a civil action; but the purpose of that section was to prescribe a mode of procedure to be adopted in a criminal action for the collection of such costs when imposed. AVe do not think a judgment rendered in pursuance of sections 719 and 720 of the Code of Criminal Procedure can be held to be a judgment in a civil action. Nor do we think the provisions of sections 3044 and 3045 of the Code of Civil Procedure applicable to such a case. But it is claimed that unless this appeal is sustained there can be no review of the judgment appealed from. If this were admitted, and if it were conceded that a right to review such a judgment should exist, still, we would not be justified in holding that a right of appeal from a judgment rendered in a criminal action is given by those sections of the Code of Civil Procedure. If the law is defective, its defects should be supplied by legislative, rather than judicial, action. As was said by Smith, P. J., in People v. Norton, supra: “It may well be that the legislature intended to provide no appeal from judgments of this nature, as they do not involve the merits of the prosecution, and the amount of costs chargeable upon a prosecutor in a court of special sessions can never be large.” We think the county court properly dismissed the appeal in this case, and that the order appealed from should be affirmed. Order affirmed. All concur.  