Hon. R. Frederick Smyth, Recorder.
[After stating the above facts.] The first question presented for the determination of this court, is as to whether an appeal lies to it from the court of special sessions, the respondent’s counsel insisting that the court of special sessions alone has exclusive jurisdiction of.such appeals, under the provisions contained in section 1456 of chapter 410 of the Laws of 1882 (Hew York City Consolidation Act).
So much of that section as refers to the question presented by the respondent’s counsel, is as follows: “ And that any appeal from, or amendment to, said order (of conviction of the person as a disorderly person) shall be exclusively for the action of the court of special sessions.”
' On the part of the defendant it is insisted that the language of that section of the statute did not, prior to the amendment of section 749 of the Code of Criminal Procedure, by chapter 372 of the Laws of 1884, preclude the supreme court from reviewing the decision of the court of special sessions on a common law certiorari, and he refers to the cases of People ex rel. Smith v. Commissioners of Public Charities (9 Hun, 212); People v. Sanders (3 Id. 16), which sustain the position taken by him, as do also the later cases of People v. Walsh (33 Id. 345); People v. Fuller (29 Id. 47).
Prior to the amendment of section 749 of the Code of Criminal Procedure by chapter 372 of the Laws of 1884, the Code contained no provision for an appeal in proceed[303] ings of this character ; and prior to the passage of the Consolidation Act, there was no method by which these proceedings could be reviewed except by certiorari.
By section 515 of the Code of Criminal Procedure before its amendment, writs of errors and certiorari in criminal actions were abolished and appeal substituted for such writs. By chapter 372 of the Laws of 1884 this section of the Code was amended, so as to abolish writs of error and certiorari not only in criminal actions, but also in proceedings and special proceedings of a criminal nature ; and declaring that hereafter the only mode of reviewing a judgment or order in a criminal action or special proceeding of a criminal nature is by appeal, and it has been held, since the amendment of that section of the Code, that an appeal is now the proper and only method by which special proceedings of a criminal nature can be reviewed (People v. Ontario Co. Sessions, 45 Hun, 54).
Prior to the passage of the Consolidation Art, it seems, that the method of reviewing the conviction of a person as a “ disorderly ” person in the city and county of New York, was by certiorari, and since the passage of that act the right to review the justice’s judgment in such cases was by appeal to the special sessions of the county of New York, and the right of the supreme court by certiorari to review the proceedings of the court of special sessions. It is claimed by the counsel of the appellant, that by the amendment of section 749* of the Code of Grim. Procedure, the right of review, which the supreme court undoubtedly possessed, is conferred upon this court. Section 749 of the Code of Criminal Procedure, as it was [304] originally adopted, applied only to an appeal from a judgment of conviction in a criminal action rendered by a court of special sessions, but since the amendment of said section, by chapter 372 of the Laws of 1881, it'authorizes an appeal not only from a judgment of conviction in a criminal action rendered by a court of special sessions, but also from a-judgment of conviction by a police court., police magistrate,' or justice of the pence, in proceedings, or special proceedings of a criminal nature, and as the case under consideration is a special proceeding of a criminal nature, I am of the opinion, that, the right of appeal from the judgment of the court of special sessions, rendered therein, to this court is given, and that this court has the right to review the judgment of the special sessions in this proceeding. More especially does this appear to be so, as the right which a defendant has to review of the proceedings of the specials sessions by the supremo court has been taken away by the abolition of the writ of certiorari.
Having arrived at the conclusion that this court has the right to entertain the appeal, and review the proceedings of the special sessions, an examination of the evidence becomes necessary for the pm posé of determining whether the charge of abandonment has been sustained; and, if so, whether it took place in the city and county of Hew York.
The parties, prior to their marriage, were residents of the city of Philadelphia, in which city they were married on September 20, 1878, and they continued to reside there for about live months after their marriage. The wife left her husband in that city, having, as she testified, “ decided that she would live separated from the defendant for awhile,” and came to the city of Hew York to reside with her relatives; she resided hero for a short time, and returned to Philadelphia, where she resided for a short time, and [305] again returned to this city in 1881, and has since resided here.
Since the separation of the parties in Philadelphia they have never lived together, nor has the defendant contributed anything towards the support of his wife.
The cause of the separation, according to the wife’s testimony, wras acts of cruelty perpetrated by her husband, his, inability to support her, and her inability, by reason of sickness, to prosecute her business as a dressmaker.
The alleged acts of cruelty are positively denied by the husband ; and if they were perpetrated they appear to have been condoned by the wife. The defendant remained in. the city of Philadelphia for a short time after the separation, and then resided in Green point from the end of 1879-to 1881; from there he went to Europe, on business, and on his return to this country resided, from March to July, 1882,. in the city of New York, and from 1882 to the present time-he has resided in Williamsburgh, Kings County, where he has ever since been employed in a factory at that place.
In 1884 the defendant took his meals at a house in this-city, but did not reside here. In that year he called upon his wife, at her place of residence, in response to a letter from her inviting him to do so. A conversation occurred between them in which the wife testifies: “ I then asked him, told him that we were both young, and there might be-hope of ns living happy together yet, and I asked him for-support. I was very sick at the time. lie said he would noverlive with me again, and I offered to go and live with him.” The husband denies that any such conversation took place. No other demand was made for support, or offer on the part of the wife to return to. and live with her husband. The-evidence clearly shows, that at this time, and down to the-time the wife commenced these proceedings in December,. 1887, she had knowledge of the fact that her husband was. a resident of Kings County, and that he was employed, there.
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Hon. R. Frederick Smyth, Recorder.
[After stating the above facts.] The first question presented for the determination of this court, is as to whether an appeal lies to it from the court of special sessions, the respondent’s counsel insisting that the court of special sessions alone has exclusive jurisdiction of.such appeals, under the provisions contained in section 1456 of chapter 410 of the Laws of 1882 (Hew York City Consolidation Act).
So much of that section as refers to the question presented by the respondent’s counsel, is as follows: “ And that any appeal from, or amendment to, said order (of conviction of the person as a disorderly person) shall be exclusively for the action of the court of special sessions.”
' On the part of the defendant it is insisted that the language of that section of the statute did not, prior to the amendment of section 749 of the Code of Criminal Procedure, by chapter 372 of the Laws of 1884, preclude the supreme court from reviewing the decision of the court of special sessions on a common law certiorari, and he refers to the cases of People ex rel. Smith v. Commissioners of Public Charities (9 Hun, 212); People v. Sanders (3 Id. 16), which sustain the position taken by him, as do also the later cases of People v. Walsh (33 Id. 345); People v. Fuller (29 Id. 47).
Prior to the amendment of section 749 of the Code of Criminal Procedure by chapter 372 of the Laws of 1884, the Code contained no provision for an appeal in proceed[303] ings of this character ; and prior to the passage of the Consolidation Act, there was no method by which these proceedings could be reviewed except by certiorari.
By section 515 of the Code of Criminal Procedure before its amendment, writs of errors and certiorari in criminal actions were abolished and appeal substituted for such writs. By chapter 372 of the Laws of 1884 this section of the Code was amended, so as to abolish writs of error and certiorari not only in criminal actions, but also in proceedings and special proceedings of a criminal nature ; and declaring that hereafter the only mode of reviewing a judgment or order in a criminal action or special proceeding of a criminal nature is by appeal, and it has been held, since the amendment of that section of the Code, that an appeal is now the proper and only method by which special proceedings of a criminal nature can be reviewed (People v. Ontario Co. Sessions, 45 Hun, 54).
Prior to the passage of the Consolidation Art, it seems, that the method of reviewing the conviction of a person as a “ disorderly ” person in the city and county of New York, was by certiorari, and since the passage of that act the right to review the justice’s judgment in such cases was by appeal to the special sessions of the county of New York, and the right of the supreme court by certiorari to review the proceedings of the court of special sessions. It is claimed by the counsel of the appellant, that by the amendment of section 749* of the Code of Grim. Procedure, the right of review, which the supreme court undoubtedly possessed, is conferred upon this court. Section 749 of the Code of Criminal Procedure, as it was [304] originally adopted, applied only to an appeal from a judgment of conviction in a criminal action rendered by a court of special sessions, but since the amendment of said section, by chapter 372 of the Laws of 1881, it'authorizes an appeal not only from a judgment of conviction in a criminal action rendered by a court of special sessions, but also from a-judgment of conviction by a police court., police magistrate,' or justice of the pence, in proceedings, or special proceedings of a criminal nature, and as the case under consideration is a special proceeding of a criminal nature, I am of the opinion, that, the right of appeal from the judgment of the court of special sessions, rendered therein, to this court is given, and that this court has the right to review the judgment of the special sessions in this proceeding. More especially does this appear to be so, as the right which a defendant has to review of the proceedings of the specials sessions by the supremo court has been taken away by the abolition of the writ of certiorari.
Having arrived at the conclusion that this court has the right to entertain the appeal, and review the proceedings of the special sessions, an examination of the evidence becomes necessary for the pm posé of determining whether the charge of abandonment has been sustained; and, if so, whether it took place in the city and county of Hew York.
The parties, prior to their marriage, were residents of the city of Philadelphia, in which city they were married on September 20, 1878, and they continued to reside there for about live months after their marriage. The wife left her husband in that city, having, as she testified, “ decided that she would live separated from the defendant for awhile,” and came to the city of Hew York to reside with her relatives; she resided hero for a short time, and returned to Philadelphia, where she resided for a short time, and [305] again returned to this city in 1881, and has since resided here.
Since the separation of the parties in Philadelphia they have never lived together, nor has the defendant contributed anything towards the support of his wife.
The cause of the separation, according to the wife’s testimony, wras acts of cruelty perpetrated by her husband, his, inability to support her, and her inability, by reason of sickness, to prosecute her business as a dressmaker.
The alleged acts of cruelty are positively denied by the husband ; and if they were perpetrated they appear to have been condoned by the wife. The defendant remained in. the city of Philadelphia for a short time after the separation, and then resided in Green point from the end of 1879-to 1881; from there he went to Europe, on business, and on his return to this country resided, from March to July, 1882,. in the city of New York, and from 1882 to the present time-he has resided in Williamsburgh, Kings County, where he has ever since been employed in a factory at that place.
In 1884 the defendant took his meals at a house in this-city, but did not reside here. In that year he called upon his wife, at her place of residence, in response to a letter from her inviting him to do so. A conversation occurred between them in which the wife testifies: “ I then asked him, told him that we were both young, and there might be-hope of ns living happy together yet, and I asked him for-support. I was very sick at the time. lie said he would noverlive with me again, and I offered to go and live with him.” The husband denies that any such conversation took place. No other demand was made for support, or offer on the part of the wife to return to. and live with her husband. The-evidence clearly shows, that at this time, and down to the-time the wife commenced these proceedings in December,. 1887, she had knowledge of the fact that her husband was. a resident of Kings County, and that he was employed, there.
Upon this evidence it is very clear, that, if there was an [306] .abandonment, it took place in the city of Philadelphia. The ■evidence does not establish abandonment of the wife in this ■city. At the time of the alleged offer by the wife to return ¡to her husband, and the demand for support and refusal on 'his part to live with or support her, they were living separate and apart, and had been for years doing so. Indeed, ¡the evidence establishes the fact, that, the wife, without ¡legal cause, left her husband in the city of Philadelphia ■with the determination to live separate from him, and, that, .although she knew him to be a resident of another county, .she made no offer to return to and live with him at his place ■O'f residence.
It was her duty, under the circumstances of this case, if .she desired to compel her husband to support her, to go to 'his place of residence, and offer at least to resume the duties .and responsibilities of a wife ; and if he then refused to live ¡with or support her, she had a remedy.
The defendant committed no offense within this county. He .did not abandon his wife here ; on the contrary, the wife ■voluntarily selected this city as her place of residence. Nor iis this comity bound to support her here. The right of the ¡husband to select his own and his wife’s residence is un■donhted (People v. Pettit, 74 N. Y. 320).
The -magistrate who issued the warrant for the arrest of ¡the defendant, did not acquire jurisdiction of cither the person of the defendant, or of the subject-matter of this pro■eceding.
. The fact that the svife lived in this city on and prior to the time of the issuing of the warrant against the defendant, .and his refusal to support her upon a demand made here, did not con fer jurisdiction upon the magistrate. If it were otherwise, a wife, who had at some time been abandoned by her husband in another county or State, might, by taking up her residence in this county, confer jurisdiction upon a justice here to punish hirn for that offense. No authority sustaining such a proposition can be found (Bayne v. People, 14 [307] Hun, 181). See, also, sections 1453, 1454 and 1455 of the N. Y. Consolidation Act (L. 1882, c. 410).
A careful examination of the evidence leads me to the conclusion that the offense of abandonment was not committed in this city and county, and an examination of the statutes and authorities regulating and bearing upon proceedings of the character of the one in question, convinces me that the magistrate, before whom the proceeding was instituted, acquired no jurisdiction of either the person of the defendant, or of the subject-matter of the proceeding.
The judgment of the special sessions must be reversed.
As to the duty of the husband, under present statutes, see Lutes v. Shelley, 40 Hun, 197, and cases below cited.
As to husband’s liability to third persons for support, see Goodale Brocknor, 61 How. Pr. 451; aff'd in 25 Hun, 621, and this rev’d in Goodale v. Lawrence, 83 N. Y. 513.
As to remedy of the wife for abandonment, see People ex rel. Douglass v. Nachr, 1 N. Y. Crim. R. 513.
These remedies are purely statutory. Pomeroy v. Wells, 8 Paige, 406.
As to jurisdiction, see Bayne v. People, 14 Hun, 181; People ex rel. Drake v. Bergen, 36 Id. 241; Commissioners' Attachment, 2 Abb. Pr. N. S. 83.
Necessary oath to complaint, People ex rel. Smith v. Commissioners of Pub. Charities, 9 Hun, 212.
Evidence of wife’s poverty necessary, see People ex rel. Kehlbeck v. Walsh, 11 Hun, 292 (followed, in 14 Id. 181).
Competency of the wife as a witness in the proceedings, People v. Crandon, 17 Hun, 490. Compare People ex rel. Sanders v. Special Sessions, 5 Supm. Ct. (T. & C.) 260; s. c., as People ex rel. Commissioners of Pub. Charities, &c., v. Sanders, 3 Hun, 16; People ex rel. Smith v. Commissioners of Pub. Charities, 9 Id. 212.
What are sufficient grounds for wife’s leaving, see People v. Pettit, 74 N. Y. 320.
Wife leaving on account of danger, see People ex rel. Scherer v. 1 Walsh, 2 N. Y. Crim. R. 325.
Compare People v. Carroll, 3 Park Cr. 73 (refusal of husband to allow wife to live with him), and see Bennac v. People, 4 Barb. 164; L. 1861, p. 244, c. 127.
[308] Pendency of divorce no excuse. People v. Mitchell, 2 Supm. Ct. (T. & C.) 172.
The property of the husband may be attached. Bourgeois’ Case, 7 Abb. N. C. 260.
As to breach of bond, see People v. Pettit, 6 Supm. Ct. (T. &. C.), 9; s. c., 3 Hun, 416.
As to prosecution of the bond or undertaking, see Lutes v. Shelley, 40 Hun, 197; and People ex rel. Comm'rs v. Dando, p. 245 of this vol.
For the remedy to compel a parent to support a child,' see People ex rel. Balch v. Strickland, 13 Abb. N. C. 473; Bennefield v. State (G., Jan. 9, 1888) 4 Southeastern Rep., 869.