People v. Addes , 45 Misc. 314 ( 1904 )

Foster, J.:

This is an appeal from a judgment of a Magistrate’s Court, rendered October 10, 1904, adjudging the defendants, and each of them, guilty of disorderly conduct under section 1458 of the New York City Consolidation Act, and requiring them to give bonds in the sum of $1,000 for their good behavior, which, I am informed, they have done.

The appeal herein was allowed by this court on the 17th day of October, 1904. It was noticed for argument for the 21st day of November, 1904, and the notice of argument was served on the 10th day of November, 1904. This term of the court began November 7, 1904.

Section 759 of the Code of Criminal Procedure provides as follows: “ The appeal must be brought to argument by the defendant at the next term, upon a notice of not less than ten days before said, term, to the district attorney of the county.” The appellant concedes that this provision was not complied with, and contends, that section 760 of the Code of Criminal Procedure which provides: “ If the defendant omit to bring the appeal to argument, as provided in the last section, the court must dismiss it, unless it continue the same, by special order, for cause shown,” makes it discretionary with the judge to hear the appeal at any time.

In view of the facts set forth in the magistrate’s return, and of the statement made by the district attorney of the great delay that has heretofore existed in bringing these appeals h> argument, I am constrained to believe that the interests' of justice require the enforcement of the provisions of section 759, to the end that these appeals may be promptly heard and disposed of. Eo sufficient reason is shown here for the delay, and I am not, therefore, justified, by special order, in continuing this hearing.

I hold and decide, therefore, that the notice of argument herein was served too late, and that the appeal for that reason must be dismissed.

Appeal dismissed.