The People of the State of New York, Respondent, v. Mary O'Neill, Appellant

The People of the State of New York, Respondent, v. Mary O’Neill, Appellant. Second Department, March 1, 1907. Court — appeal from order of "justice of Special Sessions sitting in Children’s Court, Appeals from the Court of Special Sessions in .the borough of Brooklyn are to the Appellate Division. But appeals from orders by the Children’s Court! of that city in cases of charges against children not amounting .to crime, where the justices of said court act as magistrates, lie to the County Court. Appeal by tlie defendant, Mary O’Neill, from an order of the County Court of Kings county, entered in the office of the clerk of the county of Kings on the 17th day of December, 1906, dismissing the appeal for lack of jurisdiction. An order was made by a single justice of the Court of Special Sessions in the Children’s Court in the borough of Brooklyn committing this appellant, a female child under 16 years of age, to the custody of an institution under section 291 of the Penal Code, on the ground that she did not have proper guardianship (Sub. 2). An appeal therefrom to the County Court of Kings county was dismissed on the ground that the appeal did not lie to that' court but to this court. Walter Lester Glermey, for the appellant. Peter P. Smith [John F. Glarke with him on the brief], for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: By the charter of the city of New York a city magistrate may not hold a court of Special Sessions and try misdemeanors as formerly. He may only try, but not as a court, charges,of those lesser things which do not amount to misdemeanors, of which vagrancy, or being a disorderly person, or that a child begs, Or is without proper guardianship, and the like, are examples (Code Cnm. Pro. secs. 887, 899 ; Penal Code, sec. 291). These are not crimes hut only conditions. Such courts of Special Sessions have to be held by justices specially appointed for. that purpose, and three must sit to make a court (Title 3; see. 1405 ei seq.). And appeals from such courts are the same as from judgments on indict meñts, viz., to the Appellate Division of the Supreme Court (sec. 1414). By subsequent sections of this Same title of the charter, which came.in as amendments or additions after the charter was in effect, the justices of Special Sessions of the first division (Manhattan and Bronx boroughs), and those of the second division (Brooklyn, Queens and Richmond boroughs), are respectively required to assign “ a separate part for the hearing and disposition of cases heretofore within the jurisdiction of .city, magistrates involving the trial or commitment of children, which part shall be called the children’s court.” The children are to be under 16 years of age. It is then .provided that the “justice or justices” holding such a court shall “have all the powers, duties and jurisdiction now possessed by the ■city magistrates” “in all such cases” and shall “.supersede” such magistrates therein. This, be it observed,'relates only to magisterial powers and duties, which it confers on the justices of the Special Sessions courts, whereas theretofore they could not act as magistrates, but only as. a court of Special Sessions. It is also provided that in the trial of such'children on charges of misdemeanors one of such justices instead of three may constitute such children’s court of Special Sessions unless the prosecution or the defense objects thereto (secs. 1418, 1419). In the foregoing system ho appeals are provided for by the city charter except by section 1414, and that only provides for appeals from convictions, by courts of Special Sessions. Other appeals, i. e., from orders or judgments of magistrates toe left as they were. The transfer of the trial of those lesser charges not "amounting to crimes against such children from' the city magistrates, who theretofore tried them, to the justices of the children’s court of Special Sessions, as magistrates i. e. from one set of magistrates to another set — did not change the method of appeal in such cases. Section 749 of the Code of Criminal Procedure regulates appeals from magistrates, and requires them to be to the county court. The order should be reversed, and the appeal heard in the county court. ' Hiesohberq, P. J., Jen-ks, Rich and-Miller, JJ., concurred. Order of the County Court of Kings county reversed and appeal directed to be heard in said court.