
    PEOPLE ex rel. VITAN v. VITAN.
    
      N. Y. Court of General Sessions;
    February, 1888.
    1. Appeal to JV. V. General Sessions from conviction as disorderly person.] Since the amendment of Code Grim. Pro., §§ 5lñ, 740, by (L. 1884, c 372) abolishing writs of error and certiorari, and making an appeal the only mode of reviewing a judgment or order, in special proceedings of a criminal nature, and authorizing an appeal from a conviction had before a police court, police magistrate, or justice of the peace,—an appeal lies to the court of general sessions of New York County from a judgment of conviction by the special sessions entered upon an order affirming a conviction by a police justice of defendant as a disorderly person upon his wife's charge of abandonment, without adequate support.
    2. Thesame;AF. T. City Consolidation Act.] The provision of section 1456 of the New York City Consolidation Act (L. 1882, c. 410),—■ that “ any appeal from, or amendment to, said order [of conviction as a disorderly person] shall be exclusively for the action of the court of special sessions,’1—does not preclude the appeal.
    3. Wifds charge of abandonment; proof.] A wife’s charge against her husband, that he had abandoned her in the county of New York, without adequate support, is not sustained, and the magistrate of that county who issues the warrant of arrest acquires no jurisdiction either of the person of defendant or of the subject-matter, where it appears that the wife, voluntarily and without legal cause, left her husband in another State, with the determination to live separate from him ; that she had lived separate from him ever since, and had never offered to return to and live with him at his present place of residence in another county in this State ; though she testifies that at her residence in New York County she had asked him for support, and offered to live with him.
    Appeal from the judgment and order of the court of special sessions of New York County affirming the conviction of the defendant by a police justice of the city of New York as a disorderly person upon a charge by the defendant’s wife that lie had abandoned her in the city of New York without adequate support.
    
      1 The defendant, Amedeo Vitan, was arrested upon a warrant granted by one of the police justices of this city upon the complaint of the relator, Julie Vitan, in which she charged the defendant, her husband, with having1 abandoned her in the city of New York, without adequate support.
    On being brought before the justice, an examination and inquiry into the facts and circumstances of the case was had before him ; and upon the proofs taken, the justice adjudged the defendant to be a disorderly person, and thereupon ordered the defendant to pay to the Commissioners of Charities and Correction, weekly, the sum of five dollars for, and towards, the support of his family.
    From this order the defendant appealed to the court of special sessions of the peace, which court thereupon proceeded to try the case, took the testimony of various witnesses produced before it, and made an order affirming the conviction of the defendant by the police justice, and required him to pay to the said Commissioners of Charities and Correction, the amount adjudged by the police justice to be paid by the defendant for the support of his family, and also requiring him to find surety for the performance by him of the order, and committing him until he should find such surety, or in default thereof ordered that he should be'imprisoned for the term of six months at hard labor.
    From the judgment and order of the special sessions the defendant appealed to the court of general sessions of this county, a judge of which court allowed the appeal.
    
      William C. De Witt (Rufus O. Catlin, attorney), for the defendant, appellant.
    I. The language of the statute under which these proceedings were had (Z. 1882, c. 410, § 1456) did not, prior to the amendment of Code Grim. Pro. § 749 (Z. 1884, c. 372), preclude the supreme court from reviewing the decision of the court of special sessions, in such cases upon a common law certiorari (People ex rel. Smith v. Comm'rs Public Charity, 9 Hun, 212; People v. Sanders, 3 Id. 16). Code Grim. Pro. § 515, abolishing writs of certiorari in criminal actions, and leaving an appeal as the only mode of reviewing a judgment or order in a criminal action, was decided in People v. Walsh, 33 Hun, 345, to refer only to criminal actions as defined in the Code, and not to a special proceeding of a criminal nature. This distinction, however, has been abolished (Z. 1884, c. ^ 372 ; amd’g Code Crim. Pro. § 749). In the same case the court in holding that an appeal was not authorized by Code Crim. Pro. § 749, prior to its amendment, and then in force, based its decision upon the ground that the proceedings were not had in a court of special sessions, but' in a police court, and that an appeal was limited to a judgment had in the court of special sessions. The old common law certiorari having therefore been superseded, an appeal is the only remedy under - which to review these proceedings. The defendant having been convicted of being a disorderly-person, and the judgment of the court being that he should in the alternative give an undertaking to comply with the order of the court, or be committed to jail for six months, this constitutes a judgment upon conviction within Code Crim. Pro. § 749.
    II. The courts below acquired no jurisdiction of the person or subject-matter of this proceeding, as the main inquiry there and upon which it relied in rendering its judgment was as to whether defendant was a resident of the city of New York; and the evidence being wholly insufficient to establish this, the onljr remedy against defendant is in the place of his domicil (Bayne v. People, 14 Hun, 181). The fact of defendant having a room in the city of New York is not inconsistent with a residence in Greenpoint, and having made his home there that is his domicil (Bartlett v. Mayor, etc. of New York, 5 Sandf. 44). Not having abandoned this residence, or manifested any intention to settle in another place permanently, his domicil is unchanged (De Meli v. DeMeli, 67 How. Pr. 20).
    III. The separation having taken place in Philadelphia, and-the offense being complete at the time of the abandonment (Bayne v. People, 14 Hun, 181), the fact that a subsequent demand for support was made in the city of New York does not constitute a new offense, or give the court jurisdiction. The words “ being disorderly ” in the statute under which these proceedings were had, refer only to the present time, and the defendant being at the time of the issuing of the warrant a resident at Greenpoiut, ic was there that the offense, if any, was committed, and there only can he be punished (Bayne v. People, supra).
    
    IV. The relator having left the defendant without his consent, he is not to be charged with necessaries supplied to her unless he has committed acts justifying a suit against him for divorce (People v. Pettit, 74 N. Y. 320), and the evidence does not show the commission of any such acts.
    
      William A. Boyd, corporation attorney, for the commissioners.
    N. Y. Code Crim. Pro. § 749, under which defendant claims that an appeal lies to the court of general sessions from an order of the court of special sessions, does not apply to this proceeding, as it is not a judgment upon a conviction rendered by a court of special sessions, but an order of that court affirming an order made by a police magistrate upon an appeal under the provisions of L. 1882, c. 410, § 1456. Moreover, this section and section 899 do not apply to the case under consideration for the reason that in the division of the Code of Criminal Procedure, these proceedings come under Part VI., Title VIL, and section 1454 of • the Consolidation Act. By.Code Crim. Pro. § 963, and L. 1882, c. 410, § 2143, all provisions of the Consolidation Act in reference to disorderly persons have been in effect since January 1, 1882. There is no provision for an appeal to the court of special sessions in the Code of Criminal Procedure. It is the Consolidation Act, § 1456, which provides for that and governs this case; and if it had been the intention of the Legislature to grant an appeal to the court of general sessions, this section would have been amended to that effect. Section 1455 of the same act declares that every person abandoning his family in the city of Hew York is a disorderly person, and section 1456 declares that any appeal is exclusively for court of special sessions. The Code of Criminal Procedure gives no appeal exclusively to courts of special sessions, because its provisions relating to abandonment apply to the State of Hew York exclusive of _ the city of Hew York, and the provision? of the Consolidation Act apply exclusively to the city of Hew York, and therefore govern this case.
   Hon. R. Frederick Smyth, Recorder.

[After stating the above facts.] The first question presented for the determination of this court, is as to whether an appeal lies to it from the court of special sessions, the respondent’s counsel insisting that the court of special sessions alone has exclusive jurisdiction of.such appeals, under the provisions contained in section 1456 of chapter 410 of the Laws of 1882 (Hew York City Consolidation Act).

So much of that section as refers to the question presented by the respondent’s counsel, is as follows: “ And that any appeal from, or amendment to, said order (of conviction of the person as a disorderly person) shall be exclusively for the action of the court of special sessions.”

' On the part of the defendant it is insisted that the language of that section of the statute did not, prior to the amendment of section 749 of the Code of Criminal Procedure, by chapter 372 of the Laws of 1884, preclude the supreme court from reviewing the decision of the court of special sessions on a common law certiorari, and he refers to the cases of People ex rel. Smith v. Commissioners of Public Charities (9 Hun, 212); People v. Sanders (3 Id. 16), which sustain the position taken by him, as do also the later cases of People v. Walsh (33 Id. 345); People v. Fuller (29 Id. 47).

Prior to the amendment of section 749 of the Code of Criminal Procedure by chapter 372 of the Laws of 1884, the Code contained no provision for an appeal in proceedings of this character ; and prior to the passage of the Consolidation Act, there was no method by which these proceedings could be reviewed except by certiorari.

By section 515 of the Code of Criminal Procedure before its amendment, writs of errors and certiorari in criminal actions were abolished and appeal substituted for such writs. By chapter 372 of the Laws of 1884 this section of the Code was amended, so as to abolish writs of error and certiorari not only in criminal actions, but also in proceedings and special proceedings of a criminal nature ; and declaring that hereafter the only mode of reviewing a judgment or order in a criminal action or special proceeding of a criminal nature is by appeal, and it has been held, since the amendment of that section of the Code, that an appeal is now the proper and only method by which special proceedings of a criminal nature can be reviewed (People v. Ontario Co. Sessions, 45 Hun, 54).

Prior to the passage of the Consolidation Art, it seems, that the method of reviewing the conviction of a person as a “ disorderly ” person in the city and county of New York, was by certiorari, and since the passage of that act the right to review the justice’s judgment in such cases was by appeal to the special sessions of the county of New York, and the right of the supreme court by certiorari to review the proceedings of the court of special sessions. It is claimed by the counsel of the appellant, that by the amendment of section 749 of the Code of Grim. Procedure, the right of review, which the supreme court undoubtedly possessed, is conferred upon this court. Section 749 of the Code of Criminal Procedure, as it was originally adopted, applied only to an appeal from a judgment of conviction in a criminal action rendered by a court of special sessions, but since the amendment of said section, by chapter 372 of the Laws of 1881, it'authorizes an appeal not only from a judgment of conviction in a criminal action rendered by a court of special sessions, but also from a-judgment of conviction by a police court., police magistrate,' or justice of the pence, in proceedings, or special proceedings of a criminal nature, and as the case under consideration is a special proceeding of a criminal nature, I am of the opinion, that, the right of appeal from the judgment of the court of special sessions, rendered therein, to this court is given, and that this court has the right to review the judgment of the special sessions in this proceeding. More especially does this appear to be so, as the right which a defendant has to review of the proceedings of the specials sessions by the supremo court has been taken away by the abolition of the writ of certiorari.

Having arrived at the conclusion that this court has the right to entertain the appeal, and review the proceedings of the special sessions, an examination of the evidence becomes necessary for the pm posé of determining whether the charge of abandonment has been sustained; and, if so, whether it took place in the city and county of Hew York.

The parties, prior to their marriage, were residents of the city of Philadelphia, in which city they were married on September 20, 1878, and they continued to reside there for about live months after their marriage. The wife left her husband in that city, having, as she testified, “ decided that she would live separated from the defendant for awhile,” and came to the city of Hew York to reside with her relatives; she resided hero for a short time, and returned to Philadelphia, where she resided for a short time, and again returned to this city in 1881, and has since resided here.

Since the separation of the parties in Philadelphia they have never lived together, nor has the defendant contributed anything towards the support of his wife.

The cause of the separation, according to the wife’s testimony, wras acts of cruelty perpetrated by her husband, his, inability to support her, and her inability, by reason of sickness, to prosecute her business as a dressmaker.

The alleged acts of cruelty are positively denied by the husband ; and if they were perpetrated they appear to have been condoned by the wife. The defendant remained in. the city of Philadelphia for a short time after the separation, and then resided in Green point from the end of 1879-to 1881; from there he went to Europe, on business, and on his return to this country resided, from March to July, 1882,. in the city of New York, and from 1882 to the present time-he has resided in Williamsburgh, Kings County, where he has ever since been employed in a factory at that place.

In 1884 the defendant took his meals at a house in this-city, but did not reside here. In that year he called upon his wife, at her place of residence, in response to a letter from her inviting him to do so. A conversation occurred between them in which the wife testifies: “ I then asked him, told him that we were both young, and there might be-hope of ns living happy together yet, and I asked him for-support. I was very sick at the time. lie said he would noverlive with me again, and I offered to go and live with him.” The husband denies that any such conversation took place. No other demand was made for support, or offer on the part of the wife to return to. and live with her husband. The-evidence clearly shows, that at this time, and down to the-time the wife commenced these proceedings in December,. 1887, she had knowledge of the fact that her husband was. a resident of Kings County, and that he was employed, there.

Upon this evidence it is very clear, that, if there was an .abandonment, it took place in the city of Philadelphia. The ■evidence does not establish abandonment of the wife in this ■city. At the time of the alleged offer by the wife to return ¡to her husband, and the demand for support and refusal on 'his part to live with or support her, they were living separate and apart, and had been for years doing so. Indeed, ¡the evidence establishes the fact, that, the wife, without ¡legal cause, left her husband in the city of Philadelphia ■with the determination to live separate from him, and, that, .although she knew him to be a resident of another county, .she made no offer to return to and live with him at his place ■O'f residence.

It was her duty, under the circumstances of this case, if .she desired to compel her husband to support her, to go to 'his place of residence, and offer at least to resume the duties .and responsibilities of a wife ; and if he then refused to live ¡with or support her, she had a remedy.

The defendant committed no offense within this county. He .did not abandon his wife here ; on the contrary, the wife ■voluntarily selected this city as her place of residence. Nor iis this comity bound to support her here. The right of the ¡husband to select his own and his wife’s residence is un■donhted (People v. Pettit, 74 N. Y. 320).

The -magistrate who issued the warrant for the arrest of ¡the defendant, did not acquire jurisdiction of cither the person of the defendant, or of the subject-matter of this pro■eceding.

. The fact that the svife lived in this city on and prior to the time of the issuing of the warrant against the defendant, .and his refusal to support her upon a demand made here, did not con fer jurisdiction upon the magistrate. If it were otherwise, a wife, who had at some time been abandoned by her husband in another county or State, might, by taking up her residence in this county, confer jurisdiction upon a justice here to punish hirn for that offense. No authority sustaining such a proposition can be found (Bayne v. People, 14 Hun, 181). See, also, sections 1453, 1454 and 1455 of the N. Y. Consolidation Act (L. 1882, c. 410).

A careful examination of the evidence leads me to the conclusion that the offense of abandonment was not committed in this city and county, and an examination of the statutes and authorities regulating and bearing upon proceedings of the character of the one in question, convinces me that the magistrate, before whom the proceeding was instituted, acquired no jurisdiction of either the person of the defendant, or of the subject-matter of the proceeding.

The judgment of the special sessions must be reversed.

As to the duty of the husband, under present statutes, see Lutes v. Shelley, 40 Hun, 197, and cases below cited.

As to husband’s liability to third persons for support, see Goodale Brocknor, 61 How. Pr. 451; aff'd in 25 Hun, 621, and this rev’d in Goodale v. Lawrence, 83 N. Y. 513.

As to remedy of the wife for abandonment, see People ex rel. Douglass v. Nachr, 1 N. Y. Crim. R. 513.

These remedies are purely statutory. Pomeroy v. Wells, 8 Paige, 406.

As to jurisdiction, see Bayne v. People, 14 Hun, 181; People ex rel. Drake v. Bergen, 36 Id. 241; Commissioners' Attachment, 2 Abb. Pr. N. S. 83.

Necessary oath to complaint, People ex rel. Smith v. Commissioners of Pub. Charities, 9 Hun, 212.

Evidence of wife’s poverty necessary, see People ex rel. Kehlbeck v. Walsh, 11 Hun, 292 (followed, in 14 Id. 181).

Competency of the wife as a witness in the proceedings, People v. Crandon, 17 Hun, 490. Compare People ex rel. Sanders v. Special Sessions, 5 Supm. Ct. (T. & C.) 260; s. c., as People ex rel. Commissioners of Pub. Charities, &c., v. Sanders, 3 Hun, 16; People ex rel. Smith v. Commissioners of Pub. Charities, 9 Id. 212.

What are sufficient grounds for wife’s leaving, see People v. Pettit, 74 N. Y. 320.

Wife leaving on account of danger, see People ex rel. Scherer v. 1 Walsh, 2 N. Y. Crim. R. 325.

Compare People v. Carroll, 3 Park Cr. 73 (refusal of husband to allow wife to live with him), and see Bennac v. People, 4 Barb. 164; L. 1861, p. 244, c. 127.

Pendency of divorce no excuse. People v. Mitchell, 2 Supm. Ct. (T. & C.) 172.

The property of the husband may be attached. Bourgeois’ Case, 7 Abb. N. C. 260.

As to breach of bond, see People v. Pettit, 6 Supm. Ct. (T. &. C.), 9; s. c., 3 Hun, 416.

As to prosecution of the bond or undertaking, see Lutes v. Shelley, 40 Hun, 197; and People ex rel. Comm'rs v. Dando, p. 245 of this vol.

For the remedy to compel a parent to support a child,' see People ex rel. Balch v. Strickland, 13 Abb. N. C. 473; Bennefield v. State (G., Jan. 9, 1888) 4 Southeastern Rep., 869. 
      
       Said section as amended by L. 1884, c. 372 provides as follows : “ A judgment upon conviction rendered by a court of special sessions, police court, police magistrate, or justice of the peace in any criminal action or proceedings or special proceeding of a criminal nature, may® be reviewed by the court of sessions of the county upon an appeal as prescribed by this title and not otherwise.”
      Prior to this amendment the section read as follows: “A judgment upon conviction, rendered by a court of special sessions, may be reviewed by the court of sessions of the county, upon an appeal, as prescribed by this title and not otherwise.”
     