People ex rel. Folk v. McNulty — 279 N.Y. 563

Majority

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The People of the State of New York ex rel. Mina Folk, Appellant, against John J. McNulty, as Sheriff of the County of Albany, Respondent.

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Argued January 17, 1939;

decided January 18, 1939.

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Robert E. Whalen and George W. Foy for appellant.

The Police Court of the City of Albany has exclusive jurisdiction to try and determine all charges of misdemeanor committed within that city, including the misdemeanor with which relator has been charged. (Cons. Laws, ch. 53, §§ 180, 183, 250; House v. Bodour, 168 Misc. Rep. 766 ; Cons. Laws, ch. 64, § 182; People v. Monahan, 257 N. Y. 388 ; People v. Kischel, 276 N. Y. 116 ; People ex rel. Kohut v. Hendrickson, 249 App. Div. 528 ; 276 N. Y. 563 ; People v. McCarthy, 168 N. Y. 549 ; People v. Roberts, 91 Misc. Rep. 229 ; Matter of Defazio v. Oneida County Court, 140 Misc. Rep. 487 ; People v. Sansone, 147 Misc. Rep. 581 ; People ex rel. Kipper v. Ellinger, 239 App. Div. 647 ; 266 N. Y. 423 ; People ex rel. Saranac Land & Timber Co. v. Supreme Court, 220 N. Y. 487 .) The Extraordinary term is without power to try relator for the misdemeanor charged in the case pending against her in the Albany Police Court. (People ex rel. Mayor v. Nichols, 79 N. Y. 582 ; Matter of Stilwell, 139 N. Y. 337 ; People v. Coughtry, 58 Hun, 245 ; 125 N. Y. 723 ; People v. Monahan, 257 N. Y. 388 ; People ex rel. Kohut v. Hendrickson, 249 App. Div. 528 ; 276 N. Y. 563 ; Prescott v. Ferris, 251 App. Div. 113 ; Matter of Davies, 168 N. Y. 89 ; People ex rel. Burby v. Howland, 155 N. Y. 270 ; Darweger v. Staats, 267 N. Y. 290 .) The conflict between section 67 of the Executive Law (Cons. Laws, ch. 18) and section 183 of the Second Class Cities Law

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must be resolved in favor of the latter as the latest expression of the legislative will. (Matter of City of New York v. Deyo, 158 App. Div. 319 ; 213 N. Y. 706 ; People v. O’Brien, 38 N. Y. 193 ; Koster v. Coyne, 184 N. Y. 494 ; People ex rel. Fowler v. Bull, 46 N. Y. 57 ; Matter of Mead, 74 N. Y. 216 ; Matter of Tiffany, 179 N. Y. 455 ; Excelsior Petroleum Co. v. Lacey, 63 N. Y. 422 ; Matter of La Rocca v. Flynn, 257 N. Y. 5 ; Polhemus v. Fitchburg R. R. Co., 123 N. Y. 502 ; Matter of Thomas, 216 N. Y. 426 ; Hyatt v. Taylor, 42 N. Y. 258 ; People ex rel. Brown v. Woodruff, 32 N. Y. 355 .)

John J. Bennett, Jr., Attorney-General {Henry Epstein and John R. O’Hanlon of counsel), for respondent.

The Extraordinary Term, appointed by the Governor under section 67 of the Executive Law (Cons. Laws, ch. 18) and the grand jury summoned for such term, have jurisdiction to inquire into, to indict for and to try all violations of article 74 of the Penal Law in the county of Albany, including the violation of such article of the Penal Law by the relator. (People v. Tru-Sport Pub. Co., 160 Misc. Rep. 628 ; DeHart v. Hatch, 3 Hun, 375 ; People ex rel. Mayor v. Nichols, 79 N. Y. 582 ; Barone v. Ætna Life Ins. Co., 260 N. Y. 410 ; Jones v. People, 79 N. Y. 45 ; People v. Farini, 239 N. Y. 411 ; People v. Wenk, 71 Misc. Rep. 368 ; People v. McCarthy, 168 N. Y. 549 ; Matter of Church, 92 N. Y. 1 ; Admiral Realty Co. v. City of New York, 206 N. Y. 110 ; People ex rel. Kipper v. Ellinger, 239 App. Div. 647 ; 266 N. Y. 423 ; People ex rel. Willett v. Quinn, 150 App. Div. 813 ; People v. England, 91 Hun, 152 ; People v. Luft, 192 App. Div. 713 ; People v. Harrison, 238 N. Y. 348 .)

Albany is a city of the second class.

By the Second Class Cities Law (Cons. Laws, ch. 53), section 183, the Police Court is given exclusive jurisdiction to try and determine all charges of misdemeanors, committed within the city. We find similar provision in

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section 56 of the Code of Criminal Procedure pertaining to Courts of Special Sessions outside of the city and county of New York and the city of Albany. These courts have, in the first instance, exclusive jurisdiction to hear and determine charges of misdemeanors within their respective counties.

Upon a certificate of a county judge or a justice of the Supreme Court, stating that it is reasonable that such misdemeanor be prosecuted by indictment, the charge may be.removed to a grand jury.' All these provisions relate to the jurisdiction of courts to try and dispose of misdemeanors.

There is another act of the Legislature, however, besides the Code of Criminal Procedure which relates to the prosecution of crime. It is section 67 of the Executive Law (Cons. Laws, ch. 18), which, as its very terms indicate, is a superseding act. Whenever the Attorney-General shall advise the Governor that there is occasion for an Extraordinary Term in a county to inquire into and try cases arising under article 74 of the Penal Law, the Governor may appoint an Extraordinary Term of the Supreme Court to be constituted and held for the trial of criminal cases in such county pursuant to section 153 of the Judiciary Law (Cons. Laws, ch. 30). Jurors shall be summoned for the term. This power under section 67 relates solely to crimes against the elective franchise and prosecutions under the Election Law (Cons. Laws, ch. 17) and article 74 of the Penal Law which is the provision relating to the elective franchise. The purpose of this act is to provide a method of prosecuting all crimes relating to this subject when the Attorney-General advises that there has been a breakdown in the enforcement of the law. When the Governor appoints the Extraordinary Term upon the Attorney-General’s recommendation it would be strange indeed if the court and the grand jury could only deal with felonies but not misdemeanors. The very purpose

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for which the extraordinary remedy is afforded would thus be crippled by reaching only half or at least a portion of the offenses.

We are of the opinion that section 67 of the Executive Law conferred jurisdiction upon the judge and the grand jury of this Extraordinary Term to investigate all and any crimes connected with the elective franchise.

Upon this ground, without considering any other, the order appealed should be affirmed, without costs.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ., concur.

Order affirmed.

Cases cited

People v. Monahan 257 N. Y. 388 N.Y. 1931-11-17 p. 566
People v. Kischel 276 N. Y. 116 N.Y. 1937-11-23 p. 566
People ex rel. Kohut v. Hendrickson 276 N. Y. 563 N.Y. 1937-11-30 p. 566
People v. McCarthy 168 N. Y. 549 N.Y. 1901-11-26 p. 566, p. 567
People v. Roberts 91 Misc. Rep. 229 Columbia Cty. Ct. p. 566
People ex rel. Kipper v. Ellinger 266 N. Y. 423 N.Y. 1934-12-04 p. 566, p. 567
People ex rel. Saranac Land & Timber Co. v. Extraordinary Special & Trial Term of the Supreme Court 220 N. Y. 487 N.Y. 1917-04-25 p. 566
People ex rel. Mayor v. Nichols 79 N. Y. 582 N.Y. 1880-01-27 p. 566, p. 567
In re the Distribution of the Proceeds of the Sale of the Real Estate of Stilwell 139 N. Y. 337 N.Y. 1893-10-03 p. 566
In re Davies 168 N. Y. 89 N.Y. 1901-10-01 p. 566
People ex rel. Burby v. Howland 155 N. Y. 270 N.Y. 1898-03-08 p. 566
Darweger v. Staats 267 N. Y. 290 N.Y. 1935-04-26 p. 566
People ex rel. Urban Water Supply Co. v. Connolly 213 N. Y. 706 N.Y. 1915-01-19 p. 567
People v. O'Brien 38 N. Y. 193 N.Y. p. 567
Koster v. Coyne 184 N. Y. 494 N.Y. 1906-04-17 p. 567
People ex rel. Fowler v. Bull 46 N. Y. 57 N.Y. 1871-09-05 p. 567
In re Mead 74 N. Y. 216 N.Y. 1878-06-21 p. 567
In re Tiffany 179 N. Y. 455 N.Y. 1904-11-29 p. 567
Excelsior Petroleum Co. v. Lacey 63 N. Y. 422 N.Y. 1875-12-14 p. 567
LaRocca v. Flynn 257 N. Y. 5 N.Y. 1931-07-15 p. 567
Polhemus v. Fitchburg Railroad 123 N. Y. 502 N.Y. 1890-12-02 p. 567
In re Thomas 216 N. Y. 426 N.Y. 1915-12-17 p. 567
Hyatt v. Taylor 42 N. Y. 258 N.Y. 1869-03-23 p. 567
People ex rel. Brown v. Woodruff 32 N. Y. 355 N.Y. p. 567
Barone v. Aetna Life Insurance 260 N. Y. 410 N.Y. 1933-01-10 p. 567
Jones v. People 79 N. Y. 45 N.Y. 1879-11-25 p. 567
People v. Farini 239 N. Y. 411 N.Y. 1925-02-03 p. 567
In re Church 92 N. Y. 1 N.Y. 1883-03-20 p. 567
Admiral Realty Co. v. City of New York 206 N. Y. 110 N.Y. 1912-06-29 p. 567
People ex rel. Willett v. Quinn 150 App. Div. 813 N.Y. App. Div. 1912-05-17 p. 567
People v. Luft 192 App. Div. 713 N.Y. App. Div. 1920-07-07 p. 567
People v. Harrison 238 N. Y. 348 N.Y. 1924-06-03 p. 567

Statutes and regulations cited

Executive Law p. 566, p. 567, p. 568, p. 569
Judiciary Law p. 568