
    The People of the State of New York, Appellant, v. Albert P. DeLeyden, Respondent.
    Argued October 12, 1961;
    decided October 19, 1961.
    
      Carman F. Ball, District Attorney (Leonard F. Walentynowicz of counsel), for appellant.
    I. The trial court properly questioned the witnesses. (People v. Mendes, 3 N Y 2d 120; 
      People v. Bilanchuk, 280 App. Div. 180; People v. Ohanian, 245 N. Y. 227.) II. The trial court properly exercised the discretion given it by subdivision 5 of section 388 of the Code of Criminal Procedure. (People v. Ferrone, 204 N. Y. 551; People v. Goodheim, 188 App. Div. 148.)
    
      Daniel J. Kij for respondent.
    I. A defendant cannot have a fair trial where the Justice of the Peace acts as both prosecutor and judge. (People v. Charles, 15 Misc 2d 401; People v. Hicken, 19 Misc 2d 629; People v. Man, 5 Misc 2d 852; People v. Mendes, 3 N Y 2d 120; People v. Ohanian, 245 N. Y. 227.) II. The trial court improperly exercised the discretion given it by subdivision 5 of section 388 of the Code of Criminal Procedure. (People v. Ferrone, 204 N. Y. 551.)
   Per Curiam.

It was not an abuse of discretion, in this speeding case, for the Justice of the Peace to permit the reopening of the People’s case. We further hold that in this nonjury trial, which was prosecuted by a Deputy Sheriff, it was not error for the Justice to question the witness in order to elicit sufficient facts to enable him to reach a decision (see People v. Mendes, 3 N Y 2d 120, 121; People v. Bilanchuk, 280 App. Div. 180, 182-183).

The order appealed from should be reversed, the information reinstated, and the matter remitted to the County Court for consideration of the other grounds urged by defendant in that court.

Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster concur.

Order reversed, etc.  