
    The People of the State of New York ex rel. Stella Burke, Appellant, v. Frank Fox, Warden of the Workhouse, Respondent.
    First Department,
    April 4, 1912.
    Court—jurisdiction — magistrate, city of New York—power to try case on Sunday—breach of peace.
    A magistrate of the city of New York has power to try, convict and sentence on Sunday a person who has pleaded not guilty to a charge of disorderly conduct tending to a breach of the peace.
    Appeal by the relator, Stella Burke, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of March, 1912, dismissing a writ of habeas corpus and remanding the relator to custody.
    
      James J. Mayer, for the appellant.
    
      Robert C. Taylor, for the respondent.
   McLaughlin, J.:

The relator herein was arrested on Sunday, the 25th of February, 1912, was immediately taken before a city magistrate upon the charge of disorderly conduct tending to a breach of the peace, pleaded not guilty, was tried, convicted and sentenced. Thereafter, upon a petition alleging that her imprisonment was illegal because the trial, conviction and sentence were had on Sunday, she obtained a writ of habeas corpus. The writ was dismissed by the Special Term and the relator remanded, and from an order to that effect she appeals to this court.

The question presented is whether a magistrate of the city of New York has the power, on Sunday, to try a person alleged to be guilty of disorderly conduct tending to a breach of the peace, and upon conviction to impose sentence on that day. A similar question was presented in Pepole ex rel. Price v. Warden, etc. (73 App. Div. 174), where it was held that a magistrate had such power, and we would affirm the order upon that authority, without opinion, had not the Second Department, in a case recently decided (People ex rel. Ryan v. Superintendent, etc., 149 App. Div. 794), held to the contrary.

In the Price case the relator was convicted upon a plea of guilty, while in the Ryan case after evidence was taken, and by reason of that fact it is sought to distinguish the two cases. I am unable to see any distinction. A conviction upon a plea of guilty is a .trial just as much as a conviction upon evidence taken. The result is the same. The only difference is it may take longer to reach the conviction in one case than in the other. The difference in time, obviously, cannot determine the jurisdiction of the magistrate, or whether he has summary power to dispose of a case where the defendant is charged with being a disorderly person. I concurred in the opinion in the Price case, and, after a re-examination of the question, am satisfied that the conclusion there reached is correct. The power of a magistrate, in either case, depends upon the construction to be put upon the statute relating to the subject and not upon the time it takes to determine whether the person is guilty of the offense charged. The general provision of the statute provides that “A court shall not be opened or transact any'business on Sunday, except to receive a verdict or discharge a jury. * * * But this section does not prevent the exercise of the jurisdiction of a magistrate where it is necessary to preserve the peace, or, in a criminal case, to arrest, commit or discharge a person charged with an offense. * * * ” (Code Civ. Proc. § 6; Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], § .5.)

It will be observed that the section in two cases does not prevent the exercise of the jurisdiction of a magistrate, (a) where it is necessary to preserve the peace, and (b) in a criminal case to arrest, commit or discharge a person charged with an offense. In order to “ preserve the peace ” a magistrate has jurisdiction, for that purpose, on Sunday, and this power is entirely independent and separate from his power to “commit or discharge ” in criminal cases. Summary proceedings of the character of the one under consideration have never been regarded as technically criminal actions, but rather as police regulations for the preservation of the public peace, and as such to be disposed of summarily. This was pointed out by Mr. Justice Cullen in Steinert v. Sobey (14 App. Div. 505). He said: “But whatever be the correct and accurate definition of the word ‘ crime,’ 1 think that it is not used in the Code of Criminal Procedure in a sense broad enough to include petty offenses subject to summary convictions by a magistrate.” After discussing the provisions relating to vagrancy, disorderly persons, etc., to the effect that they could not properly be regarded as crimes, he added: “This distinction in nomenclature existed prior to the Code. The title of part 4 of the Revised Statutes is: ‘An Act concerning crimes and punishments; proceedings in criminal cases; and prison discipline.’ Yet in this part of the Revised Statutes the proceedings against vagrants, disorderly persons, Sabbath breakers or disturbers of religious meetings are not to be found. These all occur in chapter 20 of part 1, entitled ‘ Of the.internal police of the State.’ It thus appears that, however inaccurate or illogical the distinction may be, summary proceedings for petty offenses leading to disorder have been considered, not as prosecutions for crimes, but for-offenses against police regulations.” The words “ to preserve the peace,” as used in section 6 of the Code of Civil Procedure, gave to the magistrate the power to do on Sunday whatever was necessary to accomplish that end; or, as said by Mr. Justice O’Brien in People ex rel. Price v. Warden, etc. (supra): “ The purpose of the provision was to ‘preserve the peace,’ and while doing so at the same time to accord to persons who might otherwise be injured by longer detention, an opportunity to be at once heard and in proper cases set at liberty. - * * In so doing we think the magistrate might commit or sentence as well as discharge, for it would seem to be an idle formality, if conviction was plainly called for, to bring the guilty person to the bar on a subsequent occasion.”

The above view is also strengthened by the fact that there is no statute, so far as I. have been able to discover, which authorizes a magistrate to adjourn a hearing and admit to bail.

It is also sustained by section 5 of chapter- 601 of the Laws of 1895, which authorizes the board of city magistrates to adopt rules “ as to the hours at which said courts shall be opened on each day, including Sundays and legal holidays, and what officers shall be in attendance; ” by section 1398 of the Greater New York charter (Laws of 1901, chap. 466, as amd. by Laws of 1903, chap. 410), which provides that the several “City Magistrates’ Courts shall be opened every day at nine o’clock in the morning * * * except on Saturdays, Sundays and holidays, when morning sessions only shall be necessary; ” and by section 71 of chapter 659 of the Laws of 1910 (Inferior Criminal Courts Act of the City of New York), which provides: There shall be a City Magistrate’s Court held daily in every court district * * * and unless otherwise directed by the Chief City Magistrate or the respective Boards of Magistrates, each court shall be open every day at nine o’clock in the morning and shall not be closed before four o’clock in the afternoon, and the City Magistrate assigned thereto shall be in attendance thereat, except during a reasonable recess, and except that the afternoon session may be dispensed with upon Saturdays, Sundays and holidays * *

The Legislature having thus provided that Magistrates’ Courts shall be opened on Sunday, their right to dispose of cases properly presented necessarily follows. Therefore, a person charged with disorderly conduct tending to a breach of the peace can on Sunday be tried and, if convicted, sentenced, as was done in the present case.

My conclusion, therefore, is that the relator was legally tried, convicted and sentenced, and the order dismissing the writ of habeas corpus and remanding her should be affirmed.

Ingraham, P. J., Clarke, Soott and Dowling, JJ., concurred.

Order affirmed.  