
    In the Matter of the Application of Harry Abraham, Petitioner, for an Order of Mandamus against Lewis J. Valentine, as Police Commissioner of the City of New York, Respondent.
    Supreme Court, Special Term, New York County,
    November 29, 1937.
    
      
      Samuel Binder, for the petitioner.
    
      Paul Windels, Corporation Counsel [David I. Shivitz of counsel], for the respondent.
   Wasservogel, J.

Petitioner, a public hack driver, seeks to restrain the police commissioner from trying him for an alleged violation of clause (b) of subdivision 4 of section 887 of the Code of Criminal Procedure.

Petitioner was tried and aquitted before a city magistrate on a charge of violating the provisions of the aforesaid section, and contends that because of the provisions of section 41 of chapter 27A of the Amended Code of Ordinances, the police commissioner may not conduct an inquiry with relation to the same offense.

Section 887 of the Code of Criminal Procedure defines who are vagrants, and subdivision 4, clause (b), thereof describes as a vagrant a person * * * who offers or offers to secure another for the purpose of prostitution, or for any other lewd or indecent act.” Section 41 of chapter 27A of the Amended Code of Ordinances provides: “ Sec. 41: The final determination of a magistrate with regard to a misdemeanor alleged to have been committed by a driver shall be binding upon the commissioner, and he shall not be tried again for the same offense.”

The police commissioner contends that the above section does not bar him from trying petitioner for his alleged violation of section 887 inasmuch as the matters therein set forth are “ offenses ” and not “ misdemeanors ” as provided for in section 41 of the Code of Ordinances. To make this construction of the latter section would be inconsistent with the evident purpose of the board of aldermen in enacting it and ignore the fact that a city magistrate as such may only try offenses.” When a magistrate tries a defendant for a misdemeanor he sits as a Court of Special Sessions. (People v. Citarelli, 247 App. Div. 53.)

The police commissioner in the affidavit submitted in opposition to this motion indicates it is his wish in any event to try petitioner for alleged violation of the provisions of section 14 or section 24p of chapter 27A of the Amended Code of Ordinances. This he may do, inasmuch as the finding of the magistrate that petitioner was not guilty of offering “ to secure another for the purpose of prostitution, or for any other lewd or indecent act ” does not bar a charge based on the aforesaid sections.

Motion is granted to the extent indicated. Settle order.  