Majority
p. 111(15 App. Div. 41.) BOARD OF COM’RS OF CHARITIES & CORRECTIONS v. McCLOSKEY. (Supreme Court, Appellate Division, Second Department. March 9, 1897.) Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and BRADLEY, JJ.
Headnote
Bastards—Appeals—Tiual be Novo.Code Cr. Proc. § 862, providing for a trial de novo in the county court on appeal from an “order” of filiation in bastardy proceedings, was not superseded by Laws 1890, c. 39, § 1, amending Code Or. Proc. § 749, which relates to appeals in general, and providing for an appeal from a “judgment” on conviction.
Appeal from Kings county court.
Bastardy proceedings by the board of commissioners of charities and corrections, on complaint of Tessie Cowie, against Richard Mc-Closkey. From an order of the county court affirming an order of filiation made by a police justice of the city of Brooklyn, defendant appeals. Affirmed.
Francis A. McCloskey, for appellant.
Charles T. B. Rowe, for respondent.
It is unnecessary to determine the question whether in a bastardy proceeding an appeal lies to this court from an order made by the county court. In People v. Cullen, 151 N. Y. 54 , 45 N.
p. 112
with the judgment of the court below on the merits. On the hearing in the county court the appellant insisted that that court was limited to an examination of the proceedings before the police justice, and the only matter to be determined by the court was whether the police justice erred on the evidence before him. The appellant declined to offer any evidence, and refused to cross-examine plaintiff's witnesses. There is no authority whatever for this claim of the appellant. Section 864, Code Cr. Proc., is a re-enactment of section 28, p. 902, 2 Rev. St. (6th Ed.). There seems to have never been any dispute as to the true construction of this section, or any denial that its provisions required a trial de novo in the county court. Roy v. Targee, 7 Wend. 358 ; People v. Lyon, 83 Hun, 303 , 31 N. Y. Supp. 942 ; People v. Schildwachter, 87 Hun, 363 , 34 N. Y. Supp. 352 . The amendments of 1890 (chapter 39) to sections 749 and 751, Code Cr. Proc., have not changed the character of proceedings on appeals from orders in bastardy proceedings. The language of section 749 is for the review of “a judgment upon conviction.” The orders made in bastardy proceedings are never so characterized by the Code, but are spoken of as “orders of filiation.” If there were no other means of review of decisions in bastardy cases than those prescribed by section 749, the court might be inclined to strain the interpretation of the term “a judgment upon conviction,” so as to include such cases. But sections 861 to 880 provide a complete scheme for appeals in such cases, and prescribe the powers of the court on appeals. It is unreasonable to suppose that, by the amendments to sections 749 and 751 of the Code of Criminal Procedure, it was intended to abrogate that scheme.
The order appealed from should be affirmed, with costs. All concur.