
    People of the State of New York ex rel. Eliza Miller, App’lt, v. Allen Cooper, Sheriff of county of Chemung, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed November, 1886.)
    
    Criminal law—City of Elmira—Exclusive jurisdiction of recorder— Laws 1875, Chap. 370—Code Crim. Pro., §§ 57 and 58.
    The recorder of the city of Elmira, under section 104 of the city charter (Laws 1875, chap. 370), has exclusive jurisdiction to try persons who are charged with “keeping a disorderly house,” subject only to their right to apply for a certificate directing that they be prosecuted by indictment pursuaut to sections 57 and 58, Code of Criminal Procedure.
    Appeal, from an order remanding the relator to the custody of the sheriff after a hearing upon the return of a writ of habeas-corpus.
    
    The recorder of the city of Elmira issued a warrant charging the relator with “keeping a disorderly house,” which is a misdemeanor and punishable under Penal Code, § 15. The relator was arrested by virtue of the warrant, pleaded not guilty, waived examination and demanded a jury trial after indictment and offered bail, which was refused upon the ground that the recorder had exclusive jurisdiction. She failing to give bail to appear for trial before the recorder at the time set by him was remanded to jail. Thereafter the relator obtained a writ of habeas corpus returnable before _the_ county judge, who held that the recorder had exclusive jurisdiction to try the offense charged and remanded her to the custody of the sheriff.
    
      Charles A. Collin, for relator app’lt; Edgar Denton, district attorney, for resp’t.
   Follett, J.

The recorder of the city of Elmira is authorized to hold courts of special sessions and exercise the powers and jurisdiction of such courts, as regulated by statute. Laws 1875, § 104, chap. 370; Elmira City Charter; Code Crim. Pro., § 63. The offense with which defendant is charged not being enumerated in section 56 of the Code of Criminal Procedure, the recorder has not exclusive jurisdiction under that section. Subdivision 33 of that section does not bring the case within the exclusive jurisdiction of the recorder, unless exclusive jurisdiction is given him by some special statute or municipal ordinance authorized by statute. Exclusive jurisdiction of the offense charged is not claimed under any municipal ordinance, but is claimed under the city charter, and especially under section 104 thereof.

Section 4 of the charter provides that there shall be three justices of the peace within the city,- and section 44 provides: “ Section 44. The justices of the' peace of the said city shall have and exercise all the powers, authority and jurisdiction, and discharge all the duties, and be entitled to the fees and compensation of jusbices of the peace of the several towns in this state, except as modified by this act.”

Section 104 provides: “Section 104. The recorder of the city shall, except in case of his absence therefrom, or inability, from sickness or other cause, to act, have jurisdiction exclusive of any justice of the peace or other officer therein, except judges of courts of record, to issue all criminal process, and to institute all criminal proceedings, which a single justice or two justices of the peace in towns are empowered or directed by law to issue and institute; to hear and entertain all complaints and conduct all examinations in criminal cases and proceedings; to hold courts of special sessions, with all the powers and jurisdiction of such courts as regulated by statute;, to try, convict and sentence all persons who may be guilty of any offenses which are or may be triable by courts of special sessions, and to commit for trial all persons who shall be charged or be guilty of any offense not triable in said court. The court of special sessions, held by said recorder, shall have jurisdiction of and power to hear and determine all charges for every misdemeanor committed or charged to have been committed within said city.” * * * *

“ Said recorder shall have the power to let to bail persons charged with crime before him in all cases of felony where the imprisonment in the state prison, on conviction, cannot ‘ exceed five years.” * * * *

“ The said recorder shah have and possess the exclusive jurisdiction of aE the offenses within said city specified in this section, except as hereinbefore stated.”

The sentence last quoted is very broad. No specific offenses are mentioned in the section, but offenses are clsssified as felonies and misdemeanors. In felonies the recorder is given power to take examinations, and let to bail when the punishment, on conviction, cannot exceed imprisonment for five years in a state prison, which are the only offenses excepted from the exclusive jurisdiction of the recorder.

Section 106 of the charter provides : “In case of sickness, absence from the city, disability or inability to act, of the said recorder, his powers and duties are hereby conferred and imposed upon either of the several justices of the peace of said city so designated, except that such justices shaE not have jurisdiction to try any person for any offense not heretofore triable by courts of special sessions.”

When this charter was passed, the policy of conferring exclusive jurisdiction upon courts of special sessions, to try specified misdemeanors, had been established. Laws 1857, chap. 769; Laws 1866, chap. 467; Laws 1872, chap. 530. The sentence in the section last quoted, “except that such justices shall not have jurisdiction to try any person for any offense not heretofore triable by courts of special sessions,” conveys the idea of a broader' jurisdiction in the court of special sessions, when presided over by the recorder, than when presided over by a justice of the peace, and if such was not the legislative intent, it is difficult to see why these words of limitation were inserted.

The language of the charter of the city of Elmira is much broader than the language in the charter of the village of Hornellsville, and the case of The People v. McDonald (26 Hun, 156) does not support the contention of the relator. We are of the opinion that the recorder had exclusive jurisdiction to try the relator for the offense charged, subject to her right to apply for a certificate, directing that she be prosecuted by indictment, pursuant to sections 57 and 58 of the Code of Criminal Procedure.

The order of the county judge is affirmed.

Hardin, P. J., and Boardman, J., concur.  