People ex rel. Coms. Pub. Char. v. Benson

The appellant was arrested under a warrant of a magistrate, upon an affidavit of Ms wife alleging that he had abandoned her without adequate support, and upon a hearing the magistrate found the appellant guilty, and required Mm to pay for the support of Ms wife and children the sum of three dollars per week for the period of one year. In pursuance of this order, the appellant gave a bond as required by the statute, This bond was executed on the 15th of March, 1900. On the 21st of March, 1900, the appellant presented an affidavit setting forth Ms arrest and conviction, and alleging that the order of the magistrate was erroneous in various -particulars. The second allegation of error was “that the charge of the abandonment

To secure the allowance of an appeal from the determination of a city magistrate, the defendant, or some one on his behalf, must within 60 days after the judgment, or within 60 days after the commitment, where the appeal is from the latter, make an affidavit showing the alleged errors in the proceeding or conviction or commitment complained of, and must within that time present it to. a justice of the Supreme Court in the city and county of Hew York, or to the recorder o-r judge authorized to hold a Court of General Sessions in that city, and apply thereon for the allowance of the appeal (Code Cr. Proc. sec. 751) ; and it has been held that the error to be relied upon on appeal must be specified in the affidavit upon which the appeal was allowed, or it will not be considered in the appellate court (People v. McGann, 43 Hun, 57 ). Here, as the assignment of error in the affidavit was that the charge of abandonment was not proven, and that the decision was against the law and the weight of evidence, the question on appeal would be whether the judgment or order of the magistrate was sustained by the evidence taken before him, and this required the magistrate to return to the court the evidence. Where the error pointed out in the affidavit is as to a question of fact, and the magistrate in consequence of his neglect to' take down the evidence has failed to return it, so that the appellate court can determine whether or not the charge was proven, it is the duty of the court to- sell aside the conviction, and order a new trial. People v. Giles, 12 App. Div. 495 ; Id. 152 N. Y. 136 . In this case the Court of Appeals held that the errors relied upon must be pointed out in the affidavit upon which the appeal is allowed; that, under section 750 of the Code of Criminal Procedure, an

Here one of the errors assigned in the affidavit being an erroneous determination of the question of fact, it was the duty of the magistrate to return the evidence; and his failure to do so would require a reversal of the order if the appellant is justified in raising that question on this appeal. Upon the return, however; it appears that before this affidavit was pretsented to the recorder of the city of Hew York, and leave to appeal granted, the defendant had given the bond required by the magistrate. By section 861 of the Code of Criminal Procedure, which is by section 1456 of the Consolidation Act made to apply to the enforcement of an order made in this proceeding, it is provided :

“A person deeming himself aggrieved by the order of two magistrates, made" pursuant to the last chapter, may appeal therefrom to the next term of the County Court of the county; except that a person who has executed an undertaking to obey an order of filiation, and indemnify the public; as provided in section eight hundred and fifty-one, cannot appeal from any other p-art of the order mentioned in section eight hundred and fifty, than that which fixes the weekly or other allowance to be paid.”

By section 850 it is provided that upon the hearing the magistrate must determine who is the father of the bastard, and must proceed to discharge the defendant if he is not! the father, and to require him to pay a sum, weekly or otherwise, if be is the father, for the support of the bastard. There were two questions to" be determined,—one as to whether the defendant was the father of the bastard, and, if so; the sum which he must pay for its support. By section. 861 of the Code of Criminal

Here the magistrate has first to determine whether the defendant is a, disorderly person, within the meaning of section 1455 of the act, and then to make an order for the payment of a sum, to be fixed, for the support of the wife or family of the defendant; and by section 861 of the Code of Criminal Procedure, where the defendant has executed an undertaking to obey the order, he cannot appeal from any other part of the order mentioned in section 850 than that which fixes the family or other allowance. If, under these provisions, the defendant, having given the bond or undertaking required by the magistrate for the payment of three dollars weekly for the support of his wife, could not appeal from any part of the order of the magistrate except! the order fixing the amount to be paid, no appeal would lie from his conviction as a disorderly person by the magistrate.

The order appealed from should therefore be reversed, and a new trial ordered before the magistrate, and, under section. 689