People ex rel. Guntner v. Murray — 16 N.Y.S. 325

Majority

p. 325

People ex rel. Guntner v. Murray, Police Justice.

(Supreme Court, General Term, First Department.

November 13, 1891.)

Headnote

Certiorari—When Lies—To Committing Magistrate.

Since the amendment of Code Grim. Proo. § 515, so as to abolish writs of error and of certiorcvri in special proceedings of a criminal nature as well as in criminal actions, certiorari will not lie to review the action of a committing magistrate, and the only remedy is by appeal.

Appeal from special term, New York county.

Application for a writ of certiorari on the relation of Frank Guntner, to review the determination of Henry Murray, a police justice in the city of New York, in committing the relator for disorderly conduct.

Argued before Van Brunt, P. J., and Daniels and Ingraham, JJ.

John Fennel, for appellant. De Lancey Nicoll, (David Welch, of counsel,) for respondent.

It is manifest that there is no power in this court to review, in the manner sought by this proceeding, the action of the respondent. The very satisfactory opinion of the learned recorder, Smyth, in the case of People v. Vitan, 20 Abb. N. C. 298 , shows conclusively that the only method of review is by appeal. Our attention is called to thee ose of People v. Walsh, 33 Hun, 345 , in support of the jurisdiction of this court, in which it was held that by section 515 of the Code of Criminal Procedure writs of certiorari in criminal actions, as they have heretofore existed, were abolished, and a review could only be had by appeal; but that the section referred only to criminal actions, as, defined by the Code, and that a proceeding before a committing magistrate was not a criminal action, but a special proceeding of a criminal nature, and hence section 515 did not apply, but the law remained as it existed prior to the Criminal Code. In 1884, however, section 515 of the Code of Criminal Procedure was amended, and its provisions extended to abolishing writs of error and certioraris, not only in criminal actions, but in proceedings and special proceedings of a criminal nature, entirely covering the case referred to in the case of People v. Walsh, supra. It is true that that ease was decided in September, 1884, but it does not appear that the attention of the court was called to the amendment which had taken place in the Code of Criminal Procedure. The writ should therefore be dismissed, with costs.

All concur.