The Board of Commissioners of Charities and Corrections, on the Complaint of Tessie Cowie, Respondent, v. Richard McCloskey, Appellant

The Board of Commissioners of Charities and Corrections, on the Complaint of Tessie Cowie, Respondent, v. Richard McCloskey, Appellant. Bastardy proceedings upon an appeal from a filiation order — trial de novo in the County Court — right of appeal to the Appellate Division. Upon an appeal from a filiation order made by a police justice, the County Court is not confined to a determination of the question whether the police justice erred on the evidence before him, as section 864 of the Code of Criminal Procedure requires a trial de novo in the County Court. The amendments, made in 1890, to sections 749 and 751 of the Code of Criminal Procedure, relating to a review of “a judgment upon conviction,” have not changed the character of the proceeding on appeals from orders in bastardy proceedings; sections 861-880 provide a complete scheme for appeals in such cases and prescribe the powers of the court on such appeals. Qurnre, whether an appeal lies to the Appellate Division from an order of the County Court made in a bastardy nroceeding. Appeal by the defendant, Richard McCloskey, from an order of the County Court of Kings county, entered in the office of the clerk of the county of Kings on the 16th day of December, 1896, affirming an order of filiation made against the defendant by a police justice of the city of Brooklyn. Francis A. McCloskey, for the appellant. Charles T. B. Rowe, for the respondent. [MAJORITY — Cullen, J. •] Cullen, J. • 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 ex rel. Comrs. of Charities v. Cullen (151 N. Y. 54) the Court of Appeals intimated that the right to such an appeal is open to grave doubt. But we find no reason to interfere 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 that 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 of the Code of Criminal Procedure is a re-enactment of 1 Revised Statutes, 647, section 28. 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 ex rel. Kenfield v. Lyon, 83 Hun, 303; People ex rel. Comrs. of Charities v. Schildwachter, 87 id. 363.) The amendments of 1890 to sections 749 and 751 of the Code of Criminal Procedure have not changed the character of the 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 such appeals. It is unreasonable to suppose that, by the amendments to sections 749 and 751 of the Code it was intended to abrogate that scheme. The order appealed from should be affirmed, with costs. All concurred. Order affirmed, with ten dollars costs and disbursements.