Drake v. Horan

173 Misc. 424, 17 N.Y.S.2d 273, 1939 N.Y. Misc. LEXIS 2665

• Court: New York Supreme Court
• Decided: December 14, 1939
• Status: Published

Opinion

Lockwood, J.

Petitioner seeks to compel the clerk of the Court of Special Sessions to perfect his appeal from an order of that court made in a filiation proceeding adjudging petitioner the father of the child involved. The clerk refused to perfect the appeal because the sum of $100 had not been deposited to pay the costs of the appeal should the order be affirmed, as required by section 76 of the Inferior Criminal Courts Act. Petitioner contends he is entitled to an appeal as a matter of right under section 520 of the Code of Criminal Procedure, and as he is unable to furnish the $1001 deposit required by section 76 of the Inferior Criminal Courts Act the latter section must be deemed superseded by section 520 of the Code of Criminal Procedure. Section 520 of the Code of Criminal Procedure applies to a filiation proceeding brought under the Inferior Criminal Courts Act. (Commissioner of Public, Welfare v. Simon, 270 N. Y. 188; Matter of Kane v. Necci, 269 id. 13.) It has been held that section 520 of the Code of Criminal Procedure “ shall supersede all other provisions of this Code, or of any other law, dealing with appeals in criminal actions and proceedings in so far as they may be in conflict with the same.” (People v. Koenig, 234 App. Div. 897.) The provisions of section 76 of the Inferior Criminal Courts Act conflict with section 520 of the Code of Criminal Procedure, and are superseded by the latter statute. If the $100 deposit provision of section 76 of the Inferior Criminal Courts Act is to be effective, it would seem that legislative correction is needed to obviate the conflict with section 520 of the Code of Criminal Procedure.

Petition granted.