
    The People of the State of New York, Respondent, v. Dominic Versage, Appellant.
    (County Court, Yates County,
    March, 1907.)
    Criminal procedure — Proceedings on review — Right of review and procedure— Proceedings to obtain review—Delivery of affidavit and allowance of appeal.
    Where the affidavit upon which an appeal from a conviction for intoxication in a public place was allowed was not delivered to the magistrate within five days, as required by section 755 of the Criminal pode, so that no return of the magistrate could be made, the appeal must be dismissed.
    
      Motion to dismiss appeal for want of prosecution and because the appeal has not been perfected.
    Thomas Carmody, for appellant.
    Spencer F. Lincoln, district attorney, for People, respondent.
   Knox, J.

The defendant was convicted in police court of Penn Yan, July 22, 1905, for intoxication in a public place. The affidavit upon which the defendant sought to set out the ground of his appeal was verified July 25, 1905.

It appears to have been filed in the Yates county clerk’s office September 22, 1905. Ho return is on file and the affidavit has not been delivered to the magistrate so that a return could be made.

Clearly the defendant has lost all rights he may have had to have his case reviewed, and the court has no power to relieve him. Sections 752, 755, 759 and others following of the Code of Criminal Procedure.

Order for dismissal of the appeal and for carrying the judgment into effect may be presented.

Appeal dismissed.  