
    The People ex rel. Elizabeth Van Riper, Respondent, v. The New York Catholic Protectory, Appellant.
    To warrant an arrest under the section of the Penal Code (§ 291, subd. 2), directing the arrest of a female child “who has been abandoned or improperly exposed or neglected by its parents or other person having it in charge,” it must appear that the child was abandoned and neglected by the fault of her parents or custodians.
    In proceedings on writs of habeas corpus and certiorari it appeared that a female child was committed to the custody of defendant for an assumed violation of said provision. The only evidence in the record, of the proceedings before the justice, was the complaint and the commitment; in the former she was charged with having been found “improperly exposed and neglected and wandering ” in a public park “ without any proper guardianship,” and the commitment recited that the material allegations of the complaint were established. Held, that the complaint did not bring the case within the said provision, as it was not alleged that she was so exposed by those having her in charge.
    The information in such a case should be precise and bring it clearly within the statute; when it omits any essential ingredient or circumstance, and the defect is not supplied by the evidence, the conviction is bad.
    The complaint also charged 1 ‘ that the said child was found in the company of * * * who is a reputed prostitute,” in violation of the provisions of the Penal Code. The return to the writs simply averred its incorporation, and that, by virtue of defendant’s charter and section 292 of the Penal Code, the child was committed to its custody under a commitment, a copy of which was annexed, which recited that the conviction proceeded upon proof of the charge made. The relator traversed the return, alleging, in substance, that the child had done no act prohibited by the Penal Code, but was in the park at the time charged for an innocent and lawful purpose, and having parents with whom she resided.- Defendant demurred to this traverse. Held, that the complaint followed substantially the language of the fourth subdivision of said section and was sufficient as matter of pleading; that the averments in the traverse admitted by the demurrer might show that the child was wrongfully convicted, but it could not be inferred therefrom that there was no evidence before the magistrate justifying the conviction; and that a retrial upon the merits could not be had in these proceedings.
    A summary conviction may not be set aside on habeas corpus or certiorari on averments and proof that the fact proved before the magistrate, on which the conviction depended, was not true.
    It was admitted that no notice of the proceedings before the magistrate was given to the father of the child, with whom she resided, and that he was not present at the examination. The relator, her mother, was present. Reid, that by reason of the omission of notice to the father the magistrate proceeded without jurisdiction; also, the fact that the father is not the relator and does not make the application for the discharge did not affect the question.
    Under the provision of said section, as amended in 1886 (Chap. 81, Laws of 1886), declaring that when it shall appear by the warrant of commitment that “the parent, guardian or custodian’’ was present at the examination before the magistrate or had such notice thereof as the magistrate shall deem sufficient, no further or other notice shall be necessary, where both parents are living the notice must be to, or the appearance by the father.
    The court below, on granting or affirming an order of discharge in such proceedings, has no authority to allow costs.
    (Argued June 21, 1887;
    decided October 4, 1887.)
    Appeal from order of the General Term of the Supreme Court in the first judicial department, made May 13, 1887, which affirmed an order of Special Term discharging, on habeas corpus or certiorari, Florence Van Riper from commitment. (Reported below sub nomine, People ex rel. v. House of Good Shepard, 44 Hun, 526.)
    The material facts are stated in the opinion.
    
      Elbridge T. Gerry for appellant.
    The relator had her day in court and is estopped by the judgment of the magistrate. (In re Moses, 13 Abb. N. C. 189; People v. Superintendent, etc., 8 Abb. Pr. [N. S.], 112; People v. Keeper, etc., 37 How. Pr. 494; In re Roach, 18 W. Dig. 514.) The notice to be served upon the parents of children committed to the appellant is governed by the provisions of the special act constituting the charter of the institution. (Laws of 1863, chap. 448; Consolidation Act, § 1612 et seq., as considered in connection with § 291 of the Penal Code, as amended by chap. 31 of the Laws of 1886.) Even if under this special act notice to both father and mother, if residents of the city, is necessary, under the Penal Code as amended in 1886, such notice is unnecessary, where either parent is present at the examination or has such other notice as the magistrate deems sufficient. (People ex rel. Van Heck v. N. Y. Catholic Protectory, 38 Hun, 127; 101 N. Y. 195.) The Special Term had no right to go behind the conviction and retry the question of fact upon which it was made, if such issue had been raised. (38 Hun, 127; People ex rel. Perkerson v. S. of St. Dom., 34 id. 463; Matter of Moses, 13 Abb. N. C. 189.) It is not necessary in commitments of this character to recite the particular act of vagrancy. The commitment need not state all the particulars necessary to make out the offense. (In re Gray, 11 Abb. Pr. 56; People v. Moore, 3 Park. Cr. 465; People v. Degnau, 6 Abb. Pr. [N. S.], 87; In re Hogan, 55 How. Pr. 458; In re Moses, 13 Abb. N. C. 189; In re Nichols, 4 N. Y. 659; Hiscocks v. Jermonson, 52 L. J. [N. S.], 43.) Where a conviction is drawn in question collaterally upon habeas corpus it has always been the rule that the commitment should be so construed as to sustain the conviction if possible. (People v. Maschke, 2 N. Y. Cr. R. 168.) When, upon the return of the writ, it is a conceded fact that the child was held under a final judgment of a court of competent jurisdiction, it is the imperative duty of the court to remand the child under the habeas corpus act without further inquiry. (Code of Civ. Pro. § 2032; People ex rel. Perkerson v. S. of St. Dom., 34 Hun, 463.) The section of the Code under which the commitment was made is remedial in its nature, not punitive; and it should be so construed as to give effect to the humane objects which it seeks to accomplish. (In re Haller, 12 Hun, 131; In re Forbes, 4 Park. Cr. R. 611; In re Donahue, 1 Abb. N. C. 1.) The right of the protectory to place the child in the House of the Good Shepherd was incidental to its guardianship, and was properly exercised. (In re Julia Moffit, Daily Reg., May 4, 1886.) This being a criminal proceeding, and not a special proceeding as defined by the Code of Civil Procedure, the General Term has no authority to impose costs.
    
      Dennis McMahon for respondent.
    There is no statutory authority for a transfer by the Catholic Protectory of any of its inmates committed to it to any other institution, but the Catholic Protectory is authorized to return a person committed to its care, or discharge such person. (Cons. Act, §§ 1623, 1624; 2 Laws of 1882, 399.) The New York Juvenile Asylum has such power (§ 1616). The fact that the commitment recites that the notice was given to the mother, and that she was present, is not complying with the statute. The father should have had notice. (Bartley v. Recklenger, 4 N. Y. 38; Combs v. Jackson, 2 Wend. 153; Fonde v. Van Hoone, 15 id. 631; People v. Nickerson, 19 id. 16; Abrenfeldt v. Abrenfeldt, Hoffman, 497; People v. Humphreys, 24 Barb. 521; People ex rel. Van Heck v. N. Y. C. Protectory, 101 N. Y. 195.) The office of a certiorari is to bring up a record of the proceedings of an inferior court or tribunal, to enable the reviewing court to decide whether it had acted within its jurisdiction. (People r. Betts, 55 N. Y. 600; People v. Assessors, 39 id. 81; Code, §§ 2140, 2044, 2039, 2042.)
   Andrews, J.

Florence Yan Riper, a child of the age -of fourteen years, was on the 5th day of October, 1886, brought before a police justice in the city of New York, charged with having been found on that day “ improperly exposed and neglected and wandering in the public park, to wit, the Union Square Park in said city, without any proper guardianship ; that the said child was found in the company of one Mary Rvan, who is a reputed prostitute, in violation of the provisions of the Penal Code.” The justice on the same day examined the charge, and, after hearing the witnesses, adjudicated that the charges set forth in the complaint were true, and thereupon issued a commitment committing the said Florence Van Riper to the New York Catholic Protectory, to be and remain under the guardianship of-said corporation until therefrom discharged pursuant to law.” Pursuant to the commitment the child was put into the custody of the institution named therein, and was produced by its officers on the return of the writs of habeas corpus and certiorari. The only evidence in the record of the proceedings before the justice is found in the written complaint upon which the proceeding was initiated, and in the commitment itself. These papers show that the complaint was founded upon an assumed violation of section 291 of the Penal Code; that the accused was brought before the justice for' examination on the charge stated in the complaint; that a hearing was had and witnesses examined, and that Elizabeth Van Riper, the mother of Florence, was present during the trial. The return of the 'appellant to the writs of habeas corpus and certiorwi consisted simply of an averment that it was incorporated under the act of May 5, 1863, and the acts amendatory thereof; and that Florence Van Riper, by virtue of said act and by section 291 of the Penal Code, as amended by chapter 31, of the Laws of 1866, was committed to its custody by a police justice of the city of New York, under a commitment, a copy of which was annexed to the return, and that she was then held by the appellant thereunder. The evidence taken before the justice has not been returned and is not before us. The writs were not directed to the magistrate, but to the House of the Good Shepherd, by whom it was alleged the said Florence was detained, and they called simply for the production of her body before the court, and that the institution detaining her should certify the time and cause of her imprisonment. The commitment, while it does not set forth the evidence, recites in substance that the material' allegations and matters set forth in the complaint were established to the satisfaction of the justice, by “ competent testimony and evidence.” The relator relies upon several grounds to sustain the order of the Special Term sustaining the writs and discharging the said Florence.

First. It is insisted that the complaint before the justice did not bring the case within section 291 of the Penal Code. This ground is, we think, well taken as to the first charge, in the complaint, viz.: “that the said Florence was found improperly exposed and neglected and wandering in the public park, to wit, Union Square Park in said city, without any proper guardianship.” The only subdivision of section 291 to which this charge has any relation is the second, which specifies one of the conditions under which a child being so found is subjected to this summary jurisdiction, viz.: “ Hot having any home or other place of abode or proper guardianship ; or who has been abandoned or improperly exposed or neglected by its parents or other person or persons having it in charge, or being in a state of want or suffering.” The charge that the child was found “ improperly exposed and neglected and wandering in the public park,” did not, as observed by the General Term, warrant her arrest, unless she had been so exposed by her “parents or other person or persons having her in charge,” and there is no such allegation. It must appear that the child was abandoned and neglected, by the fault of its parents or custodians, to justify taking it from their custody, on the ground of abandonment, or improper exposure or neglect. The information in these cases of summary conviction ought to be precise and show a case clearly within the statute. It is the foundation of the jurisdiction of the justice, and when it omits an essential ingredient or circumstance to bring the case under the statute, and the defect is not supplied by the evidence, the conviction is bad.. It is not consistent with the proper security of personal liberty to indulge, in cases of summary convictions, in latitude or liberality of intendment to support the proceedings. They are conducted contrary to the course of the common law, without the intervention of a jury, usually before magistrates of limited experience, and are often attended with the gravest consequences. This summary jurisdiction is, doubtless, most necessary to be maintained in the public interest, but at the same time the proceedings should be carefully scrutinized to see whether they are fully warranted by the statute. “ I would fain know,” said Lord Holt in Rex v. Whistler (Holt’s R. 215), “ when a penalty is inflicted and .a different manner of trial from Magna, Gharta instituted, and the party offending, instead of being tried by his neighbors in a court of justice, shall be convicted by a single justice in a private chamber, upon the testimony of one witness, if on a consideration of such a law we ought not to adhere to the letter.” Neither does that part of the complaint, which charges, in connection with the circumstance, that the child was wandering in the public park, the further .circumstance, “ without proper guardianship,” bring the case within the second subdivision. That language of the sub-division manifestly refers to those waifs who are homeless, having no abiding place and no guardian, and to a permanent :and usual condition, and not to a child casually in the street without protection. In this case we cannot assume that the -evidence was broader than the formal accusation. The finding or adjudication of the justice was in the exact language of the -complaint. But the second averment in the complaint, viz., “that the said child was found in the company of Mary Ryan, who is a reputed prostitute,” follows substantially the language of the fourth subdivision of section 291. This, according to the general rule governing accusations in criminal or guasi criminal proceedings, as matter of pleading, is sufficient. (People v. Taylor, 3 Denio, 91.) Whether the evidence supported the charge is another question. What constitutes “ being in the company of reputed thieves or prostitutes ” may not always be easily determined. I agree with the counsel for the relator, that the mere fact of a child -meeting a prostitute in a public park, and unwittingly walking ;and being in her company on a single occasion, would not make a case within the statute. But the complaint, as such, was sufficient. Whether the charge was established can only be known by an examination of the evidence taken before the justice, and that is not before us.

Second. It is. insisted that upon this record it conclusively appears that the child Florence was not subject to be imprisoned, because she did no act and was not found under any circumstances which, according to section 291, made her amenable to conviction and imprisonment. This contention is based upon the fact that in the traverse of the relator to the return of the New York Catholic Protectory it was alleged, in substance, that Florence Van Riper had done no act prohibited by section 291 of the Penal Code, but was in the park, at the time charged in the complaint, for an innocent and lawful purpose, and having parents with whom she resided in Hoboken, New Jersey, etc. To this traverse the respondent demurred, thereby, as is claimed, admitting the facts therein, and consequently her innocence and her right to be freed from restraint. But it is to be observed that the facts stated only go to the point that in fact the child had not by her conduct rendered herself amenable to the jurisdiction of the magistrate. It was not alleged in the traverse that there was no evidence before the justice of the facts adjudicated by him. The traverse, in connection with the admission of the facts alleged by the demurrer, may show that the child was wrongfully charged with “ being in the company of Mary Ryan, a reputed prostitute,” but it cannot be inferred that no evidence justifying the finding by the justice of that fact was not produced before him. The demurrer presented simply the question whether a summary conviction can be set aside on habeas corpus or certiorari on averment and proof that the fact proved before the magistrate, upon which the conviction depended, was not true, and that the real fact was otherwise, and if known would have entitled the accused person to his discharge. In other words, can there in this proceeding be a retrial upon the merits of the question whether the child had or had not committed any act or been found in any situation which subjected her to restraint or imprisonment under section 291 of the Code. The authorities conclusively settle this question adversely to the claim of the relator. Where a court or magistrate, exercising special or limited powers, has jurisdiction, the proceedings are entitled to the same presumption of regularity which attaches to proceedings of courts of higher jurisdiction, and when there is ¡3resented to a court or magistrate, exercising a summary jurisdiction, evidence of an essential fact, the judgment and decision of the court or magistrate upon the fact cannot be overhauled in a collateral proceeding, hut is conclusive as is the judgment of a court of general jurisdiction until reversed on appeal. (Brittain v. Kinnard, 1 B. & B. 482; People v. Cassels, 5 Hill, 164; 1 Smith’s L. Cas. note, pp. 976, 992 and cases cited.) We are of o]3inion, therefore, that as the commitment recites that the conviction proceeded upon proof by competent and satisfactory evidence of the charge made, and this recital is not contradicted, the admission of the facts alleged in the traverse furnishes no ground for the discharge of - the child in this proceeding.

Third. It is further insisted that the magistrate proceeded without jurisdiction by reason of an omission to give notice of the proceedings to the father of the child. The recital in the commitment that “ Elizabeth Van Riper, the parent, guardian and custodian of such child,” was present at the examination and that she had such notice of the examination as the magistrate “ deemed and adjudged sufficient,” is not controverted in the record. But it is alleged in the traverse to the return, and admitted by the demurrer thereto, that “ no notice was ever given of any of said proceedings before the committing magistrate to Thomas D. Van Riper, the father of such infant Florence, in whose house said Florence was then residing, and who was the natural guardian of said child ; nór was the said Thomas D. Van Riper present at the examination of said child’s case before the justice.” The question is, therefore, presented, whether notice of the proceeding was required to be given to the father of the infant as a condition -to a valid adjudication under section 291, of the Penal Code, as amended by chapter 31, of the Laws of 1886, there having been no notice, except to the mother, who was present at the examination. It was held by this court in the case of People ex rel. Van Heck v. New York Catholic Protectory (101 N. Y. 195), being the same institution to which the child in this case was committed, that it was an essential prerequisite to a valid, final commitment to the protectory in a case arising under section 291 of the Penal Code, that notice should be given to the father of the child, in accordance with the provisions of the Consolidation Act of 1882 (§§ 1618 et seq.), although the mother was present during the proceedings, and the court affirmed the order of the court below, discharging the son of the relator for want of such notice. Section 291 was amended in 1886, after the decision in the Van Heck case, by inserting the following provision : Whenever any child shall be committed to an institution under this Code, and the warrant of commitment shall so state, and it shall appear therefrom that the parent, guardian or custodian of such child was present at the examination before such court or magistrate, or had such notice thereof as was by such court or magistrate deemed and adjudged sufficient, no further or other notice required by any local or special statute in regard to the committal of children to such institution shall be necessary.” The precise question now'presented is, whether the mother having been present at the examination, which the magistrate adjudged to be sufficient notice to her, was notice of the pi’oceedings to the “parent, guardian or custodian” of the child within the provisions of the amendment of 1886. The word is “parent,” in the singular. The mother, of course, is one of the parents. Is it the true meaning of the' statute that notice to either parent is sufficient, or did the statute intend that when both parents were living, the notice should be given to the one who is the child’s natural guardian and custodian, which is the situation of the father if he be living. (People ex rel. Nickerson v.-, 19 Wend. 16.) Under the Consolidation Act (§ 1619), the notice is to be served on the father, if living, etc., and if not, on the mother, etc. The two acts are in pari materia, and the former act may, we think, be considered in construing the later one. The father is the parent who, probably, in most cases, would be' best able to provide for the proper defense of the child. The proceeding directly affects his right of parental control and custody. We think the amendment of 1886 implies .that notice must be given to the parent either under the consolidation act, or under section 291 of the Code, as amended. It need not, of necessity, be personal, and, under section 291, the magistrate may adjudge what and how notice shall be given. The learned judge, at Special Term, placed his decision, discharging the child, upon the ground that, under the statute, notice must be given to the father. The question is not free from difficulty, but we think the statute may and, perhaps, ought to receive this construction. The fact that the father is not the relator and does not make the application' for the discharge of the child, has, we think, no bearing upon the legal question involved. The rights of the child are primarily in question, and every step which the statute requires to be taken in the exercise of this summary jurisdiction, must be observed. These views lead to an affirmance of the orders of the Special and General Terms, but it should be without costs in this court, and we think, also, that costs should not have been granted in the court below, and that in that respect, the order should be modified. (See People ex rel., etc. v. Gilmore, 88 N. Y. 626.)

All concur.

Order affirmed.  