
    The People of the State of New York, Respondent, v. Patrick McCarthy, Appellant.
    
      County Court of Queens county—jurisdiction of to try a person indicted for a misdemeanor where no pi'oceedings have leen had in the Special Sessions.
    
    Section 1406 of the charter of the city of New York (Laws of 1897, chap. 378) confers upon the Courts of Special Sessions of that city “ exclusive jurisdiction to hear and determine all charges of misdemeanors committed within the city of New York. * * * The said courts shall, however, be divested of jurisdiction to proceed with the hearing and determination of any charge of misdemeanor in either of the following cases : First. If, before the commencement of the trial in said court of any person accused of a misdemeanor, a grand jury shall present an indictment against the same person for the same offense.”
    S6M,.that this section did not deprive the County Court of Queens county of jurisdiction to try a person indicted' by the grand jury of that county for the crime of keeping a disorderly house in the borough of Queens, although no proceedings had been previously instituted against the accused in the Court of " Special Sessions.
    Appeal by the defendant, Patrick McCarthy, from a judgment of the County Court of Queens county in favor of the plaintiff, rendered on the 25th day of May, 1900, convicting the defendant of the crime of keeping a disorderly house.
    
      Charles Haldane, for the appellant.
    
      G. A. Gregg, for the respondent.
   Goodrich, P. J.:

The defendant was indicted by the grand jury of Queens county, of its own motion, in April, 1900, for keeping a disorderly house in the first ward of the borough of Queens, and was tried and convicted under the indictment in the County Court of Queens county. He moved in arrest of judgment on the ground, among others r “ 2. That the County Court, Queens County, had no authority of jurisdiction to inquire into the charge or charges for which the defendant was convicted by indictment in the first instance, and before a charge or complaint was made to a city magistrate. That the Court of Special Sessions of the Second Division of the City of Hew'York had exclusive jurisdiction in the first instance to hear and determine the charges contained in said indictment.” The motion -being denied, the defendant appeals to this court.

■ The decision must turn upon the construction to be given- to section 1406 of the Greater Hew York charter (Laws of 1897, chap. 378), which section is substantially and mutatis mutcmdis a re-enactment of section 14 of chapter 601 of the Laws of 1895. The section is found in chapter 20, title 3, of the charter, which creates Courts of Special Sessions in the city with two divisions* the first for the boroughs of, Manhattan and The Bronx, and the second for the boroughs of Brooklyn, Queens and Richmond.

Section 1406 confers upon.' these Courts of Special Sessions “ exclusive jurisdiction to hear and determine all charges of misdemeanors committed within the city of Hew York. * * * The said courts shall, however, be divested of jurisdiction to proceed with the hearing and determination of any charge of misdemeanor in either of the following cases: First. If, before the. commencement of the trial in said court of any person accused of a misdemeanor, a grand jury shall present an indictment against the same person for the same offense.”

The defendant’s contention is that the language of the 1st subdivision of section 1406 must be restricted to cases where proceedings -have been already instituted in the Court of Special Sessions, and that the section was intended to provide for a stay of such proceedings. His counsel refers to the language of the 2d subdivision, which authorizes a stay of proceedings in the Special Sessions, but this 2d subdivision relates to an entirely different condition from that- mentioned in the 1st subdivision. The 1st relates to the power and action on the part of the people, while the 2d relates to actions on the part of the defendant, and provides that where proceedings on charges have been actually commenced in the Court of Special Sessions, a justice of the Supreme Court and certain other judges may certify that it is reasonable that such charge shall be proceeded with by indictment, whereupon the justice may order a stay of proceedings in the Court of Special Sessions.

The absence of such language in the 1st subdivision clearly differentiates the two subdivisions. The 1st is general and sweeping, and works a divestiture' of the jurisdiction of the Special Sessions, where at any time before the commencement of a trial in the Special Sessions a grand jury presents the indictment.

This is in accord with the long-established functions of the grand jury which existed at common law from time immemorial. The power of indictment finds expression in section 252 of the Code of Criminal Procedure, which is merely declaratory of the common law. That section provides that the grand jury has power, and it is made their duty, to inquire into all crimes committed, or triable in the county, and to present themx to the court. Section 1406, subdivision 1, of the charter is not inconsistent with this power. It is in exact accord therewith. To hold otherwise would infringe the jurisdiction of the Supreme Court as established in the Constitution. (Art. 6, § 1.)

There was no error in the denial of the motion in arrest of judgment, and the. judgment of conviction should be affirmed.

All concurred.

Judgment of conviction affirmed.  