The People of the State of New York, Respondent, v. Fred W. Burnham, Appellant

The People of the State of New York, Respondent, v. Fred W. Burnham, Appellant. Appeal from, a Court of Special Sessions — a special county judge of St. Lawrence county may allow it. The provisions of section 2 of chapter 806 of the Laws of 1849, as amended by-chapter 108 of the Laws of 1851, providing that special county judges in the county of St. Lawrence, and in the other counties specified in the act, “shall possess all the powers and perform the duties which are possessed and can be performed by a county judge out of court,” have not been affected by the subsequent legislation contained in sections 749, 751 and 752 of the Code of Criminal Procedure, respecting appeals from judgments of a Court of Special Sessions; and a special county judge of the county of St. Lawrence may exercise the power given by section 752 of the Code of Criminal Procedure to county judges, to be exercised out of court, of allowing appeals from judgments of Courts of Special Sessions held in the county. Appeal by the defendant, Fred W. Burnham, from an order of the County Court of St. Lawrence county, entered in the office of the clerk of the county of St. Lawrence on the 18th day of October, 1897, dismissing the appeal of the defendant from the judgment of the Court of Special Sessions held in and for the village of Gouverneur, convicting the defendant of petit larceny, and- thereupon imposing sentence upon him. The special county judge of St. Lawrence county allowed an appeal from the judgment to the Court of Sessions of St. Lawrence county, and upon the appeal afterwards being brought to argument before the County Court, the County Court dismissed the appeal upon the ground that the special county judge had no power to allow the same. Joseph George, for the appellant. Led/yard P. Hale, Dist/riet Attorney, for the respondent. [MAJORITY — Landon, J.:] Landon, J.: We think the special county judge had power to allow the appeal. Chapter 306, Laws of 1849, page 437, as amended by chapter 108, Laws of 1851, page 192, provides that special county judges in the county of St. Lawrence and the other counties specified in the act, “ shall possess all the powers and perform the duties which are possessed and can be performed by a county judge out of court.” (§ 2.) This act was framed in pursuance of section 16, article 6 of the Constitution; it has not been expressly repealed, and we do not think that the subsequent legislation respecting appeals from judgments of Special Sessions should be construed as depriving tlie special county judge of this power. Section 749 of the Code of Criminal Procedure provides that a judgment of conviction rendered by a Court of Special Sessions “may be reviewed by the County Court of the county upon an appeal as prescribed by this title and not otherwise.” Section 751 provides that the defendant must present an affidavit showing, among other things, the alleged errors “ to the county judge,” and section 752 provides that, “ if in the opinion of the judge it is proper that the question arising on the appeal should be decided by the County Court, he must indorse on the affidavit an allowance of the appeal to that court.” This is a power to be exercised out of court, and is thus vested in the special county judge. The “ not otherwise ” of section 749 was probably intended as emphasizing the repeal of the method of review by certiorari, which the method by appeal superseded. The article “ the ” in the expression “ the county judge ” in section 751 does not strike us as emphatic. Cases in which the scope of the powers of the special county judge have been considered show no tendency to give a narrow construction to the statute which confers them. (People v. Main, 20 N. Y. 434 ; Seymour v. Mercer, 13 How. Pr. 564; Thrasher v. Bentley, 59 N. Y. 649.) The order of the County Court is reversed and the appeal of the defendant reinstated. All concurred. Order of County Court reversed and appeal of defendant reinstated.