Assault in the third degree is one of the crimes enumerated in section 56 of the Code of Criminal Procedure, which section declares that, subject to the power of removal, Courts of Special Sessions have, *464in the first instance, exclusive jurisdiction to hear and determine charges of misdemeanors.
Section 58 of the Code of Criminal 'Procedure provides, viz. : “ When a person is brought before a magistrate charged with the commission' of any of the crimes mentioned in section 56, and asks that his case be presented to the grand jury, the proceedings shall be adjourned for not less than five nor more than ten days.” That section further provides, viz.: “ And when the defendant is brought before the magistrate, it shall be the duty of the magistrate to inform him of his rights under section 57 and this section.”
It is very obviotis that, upon the sixth of January, when the defendant was brought before the justice, he failed to comply with, the provisions of section 58 just.quoted; and it is inferable that the defendant, in ignorance of his rights, permitted an adjournment to take place to the 8th day of January, 1896, at which time he appeared with counsel and demanded the privilege secured to him by section 57 of applying to a county judge or a' justice of the Supreme Court for a certificate that it was reasonable that the action should be prosecuted by indictment. His application on the eighth was refused. It is presiimable that, had he been informed on the sixth of his rights, in accordance with the duty imposed on the justice by section 58, he would have availed himself of the right to apply to a county judge or a justice of the Supreme Court for a certificate..
When the Legislature provided for exclusive jurisdiction in a Court of Special Sessions of certain crimes, it was careful to provide that opportunity should be allowed to apply to. a judge of a court of' record for a certificate that the exigencies of the case were such that the usual mode of trial should be through the instrumentality of an indictment; and a part of that provision was the enactment of the language found' in section 58 of the Code of Criminal Procedure, ■ expressly declaring it to be “ the duty of the magistrate to inform him (the defendant) of his rights ” under section 57, which latter section provides that, upon filing a certificate of the county judge or a justice of the Supreme Court,. “ that it is reasonable that such charge be prosecuted by indictment,” and upon giving the bail mentioned in that, section, that “all proceedings before the- justice shall be stayed.” It is quite evident from the justice’s return, that had he performed the duty imposed upon him by section 58. at the time *465the defendant was brought before him, an application would have been made to the county judge or a justice of the Supreme Court for a certificate. If the justice, on the adjourned day, had yielded to the request of the defendant and granted the adjournment then sought, and thus afforded the defendant an opportunity to apply for a certificate, the defendant would have enjoyed all the rights secured to him by the two sections referred to; but the justice having failed to do his duty under section 58 by refusing the adjournment requested, sought to visit upon the defendant consequences which the defendant had never intelligently and understandingly assumed.
Section 211 of the Code, of Criminal Procedure provides as follows : “ If the crime with which the defendant is charged be one ' triable, as hereinbefore provided, by a Court of Special Sessions of the county in .which the same was committed, the magistrate, before holding the defendant to answer, must inform him of his right to be tried by a jury after indictment, and must ask him how he will be tried.”,
In the course of the opinion delivered in People v. Austin (49 Hun, 396) it was said, in reference to the section just quoted, viz. : “ This last section seems to have been adopted for the purpose of preserving a practice which prevailed prior to the adoption of the Code of Criminal Procedure.”
The legislation conferring upon courts of Special Sessions exclusive jurisdiction was challenged at one time as being unconstitutional, and in the course of the opinion in People v. Austin {supra) it was said, “ its validity has been sustained;” and numerous cases are cited in support of that conclusion.
We think the privileges secured to a defendant should be carefully preserved, and that the justice, under the circumstances of the case as developed by the record before us, deprived the defendant of an important right, and that the practice ought not to be sustained. (People v. Freilewek, 11 App. Div. 409.)
In People v. Cowie (88 Hun, 502; S. C., 34 N. Y. Supp. 888) it was said -in the course of the opinion, viz.: “ The right of the defendant, under section 58 of the Code of Criminal Procedure, to have time to make that application, is a legal right guaranteed by statute, and not one resting in the discretion of the justice, and *466when the defendant complies with the requirements of the statute in making the demand, it is error in the magistrate to refuse,, which may be reviewed on appeal.”
We are of the opinion that the judgment of the County Court and of the Court of Special Sessions should be reversed. .
Judgment of the County Court of Ontario county and of the Court of Special Sessions reversed, and the defendant discharged.
All concurred.
Judgment of the County Court of Ontario county and of the Court of Special Sessions reversed and the defendant discharged.