
    SUPREME COURT — APPELLATE DIVISION — SECOND DEPARTMENT.
    September 29, I9I6.
    THE PEOPLE v. FRANKLIN H. KALBFLEISCH COMPANY.
    (174 App. Div. 108.)
    (1.) Sanitary Code, city of New York—Practice—Jurisdiction of Court of Special Sessions—Statutes construed—Appeal— Failure of record to show jurisdiction of court—Conviction
    REVERSED FOR JURISDICTIONAL DEFECT.
    Prior to May 8, 1915, when chapter 531 of the Laws of that year, amending chapter 659 of the Laws of 1910, went into effect, the Court of Special Sessions in the city of New York could only acquire jurisdiction of a case commenced before a city magistrate for a violation of the Sanitary Code by an application being made therein by the department of health, and a failure of the defendant to demand a trial by jury.
    (2.) Same.
    And after said amendment, by virtue of section 44,of article III-A added thereby, ,no case for a violation of the Sanitary Code can be transferred for trial to a Court of Special Sessions composed of three justices, unless the defendant consents, or in default of such consent the city magistrate proceeds to examine the case as a magistrate and thereafter holds the defendant to answer trial before such court of three justices holding a Court of Special Sessions.
    (3.) Same.
    Where a proceeding is commenced before a magistrate, either under the former provisions of section 95, or under the present provisions of section 44, an information takes the place of an indictment, and at present if the court proposes to proceed upon an information laid before the city magistrate, it cannot do so without an order made by the city magistrate pursuant to section 44.
    Hence on an appeal to the Appellate Division from a judgment of conviction in the Court of Special Sessions, the conviction will not be sustained unless the facts affirmatively appear in the record which conferred jurisdiction upon that court.
    
      (4.) Same.
    If the record as made by the appellant is defective in this respect, it is the duty of the prosecutor to see that it is made to conform to the facts.
    (5.) Same.
    The Appellate Court will reverse a judgment of conviction for jurisdictional defects, although the question is not raised by the parties.
    Appeal by the defendant, Franklin H. Kalbfleisch Company, from a judgment of the Court of Special Sessions of the city of Flew York, borough of Brooklyn, Part 2, rendered against it on the 3d day of December, 1915, convicting it of a violation of section 96 of the Sanitary Code of the city of FTew York, and imposing a fine of $500.
    
      James W. Prendergast (Joseph Walker Magrauth with him on the brief), for the appellant.
    
      E. Crosby Kindleberger (Lamar Hardy, Corporation Counsel, and Terence Farley with him on the brief), for the respondent.
    
      
       See Cosby’s Code of Ordinances (Anno. 1914), 154, § 96; now Sanitary Code, § 212; Cosby’s Code of Ordinances (Anno. 1915), 406, § 212.—[Rep.
    
   Rich, J.:

Irrespective of the questions presented in the briefs of counsel, this judgment must be reversed upon the ground of want of jurisdiction in the court. Prior to May 8, 1915, proceedings in the Court of Special Secsions and City Magistrates’ Courts were' controlled by chapter 659 of the Laws of 1910, known as the Inferior Criminal Courts Act of the City of Flew York, section 95 of which, so far as material, provided: “Upon the complaint, against any person for violation of the Sanitary Code or any sanitary regulation, ordinance, or order, made to a magistrate, such magistrate may order the arrest of any person against whom such complaint is made, as in any other case of a criminal offense and by his warrant may require any peace officer to make such arrest, and may, after such arrest, proceed summarily to try such person for such alleged offense; but no such trial shall be had on. any arrest made in the city without sufficient notice thereof being first given to the department of health. Upon an application in behalf of said department made before the trial is commenced, the trial of such person, together with the papers, shall be remitted to the Court of Special Sessions, upon which court jurisdiction to try such persons is hereby conferred; but the right of any person to elect to be tried before a jury, as it may now exist, is not affected by anything herein contained.” Under this provision the Court of Special Sessions could only acquire jurisdiction of a case commenced before a city magistrate for a violation of the Sanitary Code, by an application being made therein by the department of health, and a failure of the defendant to demand a trial by jury.

On May 8, 1915, chapter 531 of the Laws of that year, amending some provisions of chapter 659 of the Laws of 1910, became operative. Article III-A was added, section 44 of which provides: “ Whenever a defendant is arraigned before a city magistrate for an offense which may be tried by a Court of Special Sessions held by a city magistrate, such city magistrate after taking the information and depositions and the statement of the defendant in relation thereto, or his waiver, may, with the consent of the defendant, after informing him of his right to be tried by three justices at the Court of Special Sessions provided for ira articles two and three hereof, unless objection is made in behalf of the department in charge of the prosecution for a violation of a code, rule or order of such department, or in any other case by the district attorney, proceed to hold a Court of Special Sessions and try and determine such action upon the information taken by the magistrate and the plea of the defendant taken thereto by such Court of Special Sessions and shall exercise with regard thereto all the powers and jurisdiction of the Court of Special Sessions provided for in articles two and three hereof and may from time to time adjourn such trial. In any case where the magistrate holds a Court of Special Sessions the action shall be tried and finally disposed of by him, or if the department in charge of the prosecution or the district attorney, as the case may be, and the defendant cansent, may be tried by a Court of Special Sessions to be held by the next magistrate sitting in the same Magistrate’s District Court or be remitted with the papers to the Court of Special Sessions provided for in articles two and three hereof for trial there by three justices. * * * If the defendant

shall not give such consent, or if the department in charge of the prosecution or the district attorney as the case may be shall object as aforesaid at any time before the actual trial by the magistrate in such Court of Special Sessions, the city magistrate shall proceed to examine such case as a magistrate and may, if the evidence warrants, hold such defendant to answer for trial before three justices at the Court of Special Sessions, provided for in articles two and three hereof.” • After this section became operative no case of this character could be transferred for trial to the Court of Special Sessions composed of three justices unless the defendant consented, or in default of such consent the city magistrate proceeded to examine such case as a magistrate, and thereafter held the defendant to answer for trial before such court of three justices holding the Court of Special Sessions. (People ex rel. New York Disposal Corp. v. Freschi, 173 App. Div. 189.) It was said in that case (and the conclusion is as applicable to a proceeding commenced before a magistrate under the provisions of section 95, before section 44 became operative, as to a proceeding commenced before a magistrate thereafter) : “An information takes the place of an indictment. (Code Crim. Pro., § 742; People v. Cully, 167 App. Div. 335.) Thus this very section 44 of the Inferior Criminal Courts Act of the City of New York (Laws of 1910, chap. 659, as added by Laws of 1915, chap. 531) permits the magistrate to allow the information to be amended in the same manner as an indictment. If the court purposed to proceed upon the information laid before the city magistrate (People ex rel. Cohen v. Warden, etc., 150 App. Div. 422, 27 N. Y. Crim. 71), it could not do so without an order made by the city magistrate pursuant to said section 44. On the other hand, the Court of Special Sessions could not proceed in this action as begun without a showing in any information that an order required by the said section 44 to confer jurisdiction had been made. As the information is analogous to an indictment, it, or it and this order, would naturally and properly be part of the judgment roll (Code Crim. Pro., § 485), or at least could and should be part thereof. (People v. Grout, No. 1, 166 App. Div. 222, 32 N. Y. Crim. 451.)”

In other Avords, a Court of Special Sessions, composed of one justice, or the Court of Special Sessions, composed of three justices, could not proceed to try a case commenced by information and arraignment before a city magistrate under the provisions of either section until the record before it established that such proceedings had been taken and order thereupon made, as conferred jurisdiction upon said Court of Special Sessions to try the defendant; such jurisdiction must affirmatively appear from the record on an appeal to this court to warrant or authorize it to sustain a conviction in the Court of Special Sessions in a ease which was commenced before a city magistrate by information or arrignment.

Section 39 of said chapter 531 of the Laws of 1915 provides that section 95 of the amended statute (herein quoted) is repealed from and after the first day of July, nineteen hundred and fifteen.” . The information by which the proceeding under consideration was commenced was sworn to before a city magistrate on May 14, 1915, and the proceeding thus instituted was then, and for one month and seventeen days thereafter, controlled by the provisions of, and procedure designated in, section 95 of chapter 659 of the Laws of 1910. The record fails to show that any notice was given to the department of health or that an application was made by it, or any order based on such application, remitting the case to the Court of Special Sessions, held by three justices, for trial. It does not appear that the summons asked in the information was issued by the city magistrate or that the defendant ever appeared in the proceeding or entered any plea.. The only procedure shown is that on May 14, 1915, the information was filed and that, on Hovember eleventh following, the defendant appeared by counsel in the Court of Special Sessions, composed of three justices, and without plea, motion or objection, proceeded to trial and was convicted. At the time of the trial the repeal of section 95 of chapter 659 of the Laws of 1910 had become effective, but even if the provisions of section 44 of the said Inferior Criminal Courts Act of the City of Hew York, as added by the act of 1915, controlled the procedure after July first, the status of the parties on this appeal is not changed, for the record fails to show that the order required by the provisions of either statute to transfer the case to that court or confer jurisdiction upon it, was ever made. While it is the duty of the appellant to print a full and complete copy of the record, it is equally the duty of the prosecutor, if part of such record has been omitted, to see to it that such defective record- is made to conform to the facts. Although this question is not raised, we are not precluded from considering and acting upon jurisdictional defects presented by the record.

The judgment of conviction of the Court of Special Sessions is reversed.

Jektks, P. J., Carr, Stapletok and Mills, JJ., concurred.

Judgment of conviction of the Court of Special Sessions reversed.  