There seems to be some misunderstanding of the practice under section 520, subdivision 3, of the Code of Criminal Procedure. This provides for an allowance of an appeal to this court in the following words: "If a judge of the court of appeals or a justice of the appellate division of the supreme court of the department in which such conviction was had certifies that a question of law is involved which ought to be reviewed by the court of appeals, then a further appeal on such question of law may be taken to the court of appeals."
Only one such application can be made. It may be made to any judge of the Appellate Division or to any judge of the Court of Appeals. The application is to the judge personally, not to the court. The judge must hear the application, if made to him. When, however, he has heard and denied the application, it is final — application cannot be made to any other judge either of the Appellate Division or of the Court of Appeals. If this were not so, it would be possible for the application to be made to all of the judges of these courts in succession. Under section 529, it is specifically provided that when one application has been made for a certificate of reasonable doubt, no other application for such certificate shall be made. The reasoning in Carlisle v.Barnes (183 N.Y. 272) in reference to applications for leave to appeal under section 191 of the Code of Civil Procedure has equal force to the applications under section 520 of the Code of Criminal Procedure.
In People v. Goldsmith (249 N.Y. 586) the application *Page 362 was made in the first instance to the Appellate Division as a court. We decided that this was not a compliance with section 520. In this case an order to show cause was obtained returnable before ____ one of the justices of the Appellate Division. No justice was named. The application was not made to a justice of the Appellate Division. It was so considered by that court, which denied the motion for leave to appeal as a court, five justices sitting. (225 App. Div. 660.) Under these circumstances one of the judges of this court on application duly made, granted leave to appeal, considering, as he was justified in doing, that no previous application had been made to a justice of the Appellate Division within the meaning of section 520, subdivision 3, of the Code of Criminal Procedure.
Moreover, where an order for leave to appeal has been improperly made, the proper and the better practice is to move to vacate the order, and not to wait until the argument of the appeal to raise the point. (Carlisle v. Barnes, supra.)
I repeat, however, that the attorney for the proposed appellant may choose any one of the judges of the Appellate Division or of the Court of Appeals before whom to make his application for leave to appeal, but having made his choice, he is bound by it. He cannot again apply to any other judge.
Passing to the merits of this case, we find the information alleging a conspiracy to cheat and defraud the city of money in that the defendants, taking count of the number of truck loads of snow removed from the streets by one Joseph Dolan, as subcontractor, did falsely certify that said Joseph Dolan and his employees had removed and carried away 43 instead of 31 truck loads of snow. On the trial it was stated that the city of New York contracted with John Meehan Sons, at forty-seven cents a cubic yard. After describing the method of checking the trucks as they were dumped at One Hundred and Thirty-fifth *Page 363 street and the Harlem river, the assistant superintendent of snow removal testified that it was on the checks or reports or tickets furnished by the defendants as watchers or checkers that the contractor is paid for the removal of the snow. There was evidence by Joseph Kaszubski, an employee of the Commissioner of Accounts to check the checkers, or to watch the defendants, that the eight carts designated carried only 33, not 45 loads. There seems to be this variance between the information and the testimony, the information saying 43 and 31 loads, and giving the name of Dolan as contractor instead of Meehan. No point, however, was made of these variances on the trial, the motion made at the end of the case being based solely on the ground "that the facts shown are as consistent with innocence as they are with guilt." In a criminal case as in any other, certain facts may be conceded or variances waived. (People v. Jackerson, 247 N.Y. 36.) To this statement there are exceptions; the death of a person in murder or manslaughter cases must be proved. (Penal Law, § 1041.) I take it also that a defendant's counsel could not admit premeditation and deliberation any more than he could plead guilty to murder in the first degree in behalf of his client. These variances, therefore, not raised upon the trial, cannot be pressed now as reasons for reversal. If the attention of the Special Sessions judges or of the District Attorney had been called to these matters, the proper proof might have been supplied and the proper amendments made.
The evidence shows that One Hundred and Thirty-fifth street and the Harlem river was the place designated for dumping. Kaszubski saw no dumping at One Hundred and Thirty-fourth street. It was suggested by one of the defendants that trucks went through One Hundred and Thirty-fourth street. The fact that the defendant thus testifying stood at One Hundred and Thirty-fifth street to do his checking, and that all the trucks after two o'clock in the afternoon apparently went through *Page 364 One Hundred and Thirty-fifth street according to his own checking and the testimony of Kaszubski makes, we think, these matters and this testimony one of fact. In other words, although the evidence is decidedly meager and thin, we cannot say that there was no evidence to sustain the conclusions of guilt as found by the triers of fact, the judges of Special Sessions. This court cannot review the facts or the weight of evidence.
This trial was in March of 1927. The defendants were sentenced in March of 1928. In the meantime a motion had been made by new counsel to set aside the conviction on the ground that the magistrate had held the preliminary hearings outside the district specified in section 75 of the Inferior Criminal Courts Act; and that having conducted a general investigation into the acts of the city employees in snow removal, he had no jurisdiction to hold the defendants for the Special Sessions.
The magistrate had jurisdiction to hear the charge of conspiracy, which is a misdemeanor, and to hold the defendants on sufficient evidence for trial in the Court of Special Sessions. If he held his hearings in the wrong district it was an irregularity which could have been and was waived. No objection was made to his proceeding, in fact it appears from the papers that the hearings were had in the downtown branch of the court as a convenience to all parties. The magistrate, after hearing the case, held the defendants for the Special Sessions, pursuant to section 221 of the Code of Criminal Procedure, and the District Attorney proceeded by filing his information, pursuant to section 742 of that act.
It is too late now to go back to examine the regularity of the proceedings in the Magistrates' Court. The defendants appeared, evidence was taken, they were held for the Special Sessions in accordance with the law, and an information was properly filed. The Special Sessions had jurisdiction to hear and try the case, especially as these points were not raised upon the trial, not, in fact, *Page 365 until over six months after the trial. In People v. Dillon (197 N.Y. 254) the defendant was discharged by the magistrate. This court held that the Special Sessions had no jurisdiction to try the case on an information filed by the District Attorney unless a magistrate had first heard the case and held the defendant for trial in that court. The District Attorney could proceed by indictment, but not by information without following the practice outlined in the Code of Criminal Procedure. Here the defendant was held in accordance with that procedure. In Peopleex rel. Livingston v. Wyatt (186 N.Y. 383) the action of the magistrate was immediately challenged by an application for a writ of prohibition, and this court there indicated in denying the right to the writ the remedy in a proper case.
We have considered these points raised by the defendants, although in our judgment they are not strictly before us. The proceedings before the magistrate and the Court of Special Sessions were regular upon their face and in accordance with the practice outlined in the Code of Criminal Procedure. Whatever irregularities, if any, may have existed in the preliminary steps before the magistrate as to the place of hearing and the extent of the investigation, these were waived by the defendants' acquiescence and failure to object until months after the trial.
The judgments should, therefore, be affirmed.