I concur in the opinion of our brother COLLIN for reversal and the discharge of the relator. I would add a few words as to the proposition that the police justice in Troy had jurisdiction irrespective of the unlawful methods by which the relator *Page 536 was brought before him. Under the statute, if the relator had been arrested in the county where the warrant was issued, the police justice would undoubtedly have had jurisdiction of the offense; but when the defendant is arrested in another county, as was the case here, he must be afforded an opportunity before a magistrate of that county to give the undertaking prescribed in section 844 of the Code of Criminal Procedure. If he gives it he can be tried only in the County Court of the county in which the warrant was issued, — not by the magistrate who issued the warrant. It is only in default of his giving the requisite undertaking that the magistrate issuing the warrant has power to try the case. (Code Crim. Proc. §§ 846, 848.) As the relator was deprived of the opportunity of giving such undertaking he was not chargeable with any default in that respect.
The argument of the respondent necessarily rests upon the proposition that the Troy police justice had jurisdiction to try bastardy proceedings generally, irrespective of the circumstances attendant upon the arrest of the defendant. This proposition is erroneous. Under the Code of Criminal Procedure as applicable to second class cities (Second Class Cities Law [Cons. Laws, ch. 53], § 185) the police justice had jurisdiction to try bastardy proceedings only where the defendant was arrested in the county of the police justice, or where, having been arrested in another county and having been afforded an opportunity to give the security prescribed by law, he has failed to give it. Neither of these conditions existed in the present case.