People ex rel. Gunther v. Murray

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 the People ex rel. Vitan v. Vitan, 20 Abb. N. C., 298 , shows conclusively that the only method of review is by appeal.

Our attention is called to the case of the People ex rel. Scherer v. Walsh, 33 Hun, 345 , in support of the jurisdiction of this court, in which it was held that by § 515 of the Code of Criminal Pro«cedure 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 § 515 did not apply but the law remained as it existed prior to the Criminal Code.

In 1884, however, § 515 of the Code óf Criminal Procedure was amended, and its provisions extended to abolishing writs of •error and certiorari 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 Scherer v. Walsh, supra.

It is true that that case 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.

Daniels and Ingraham, JJ., concur.