So far as the practice relating to appeals in bastardy proceedings is concerned, it seems to have been settled by this court, at least by implication, that an appeal lies to this tribunal (People v. Tripicersky, 4 App. Div. 613 ; Keller v. Mertens, 37 id. 497). where such appeals were entertained.
A different rule was announced by the second department. (Simis v. Alwang, 48 App. Div. 530.) . In the latter case, however, the provisions of chapter 601 of the Laws of 1895 were not called to the attention of the court, nor was the effect of that act considered. It is not necessary,, however, in the view which we take of the present case, that such questions should be decided, although it is quite probable that the terms of the act of 1895, section 20 of. which is made applicable to the Court of .Special Sessions in the city of Yew York by section 1413 of the Greater Yew York charter (Laws of 1897, chap. 378), are sufficiently broad to authorize the appeal. ' A fatal objection, however, prevents the hearing of this appeal as it appears in the record that this court is without jurisdiction to entertain it.
Section 20, chapter 601, Laws of 1895, provides how appeals from the Court of Special Sessions shall he taken by the defendant, in •these words, “he may appeal therefrom (the judgment or determination) to the Supreme Court in the same manner as from a judgment in an action prosecuted by indictment.” By the prior provisions of this section all laws conferring the right of appeal from Courts.of Special Sessions are repealed. This section, therefore, frirnishes the only, authority for this appeal. An appeal by'a defendant from a judgment in an action prosecuted by indictment is regulated by the Code of Criminal Procedure. (Tit. 11, chap. 1, §§ 515-532.) Section 522 provides that an appeal must be taken by the service of a notice ini writing on the clerk witli whom the judgment roll is filed. And. by the next section (523) if. the appeal is taken by the defendant a similar notice must be served'on the district attorney of tlie county in which the original judgment was rendered. In the present case the defendant served his notice of appeal upon the *468clerk of the Court of Special Sessions, and to this extent his practice was proper. He did not, however, serve the notice of appeal upon the district attorney, in consequence of which no appeal-was taken. The provisions of this section of the Code are mandatory, and the service upon the district attorney is as essential a step in order to perfect the appeal as is the service upon the clerk, and, as this was not done, no jurisdiction is conferred upon this court to hear the appeal. The defendant also served his notice of appeal upon the corporation counsel, but this does not aid him. There is no provision of law requiring service of such notice upon him, and, therefore, it can no more avail in obtaining a right than would the service of the notice upon any other'stranger. It is quite true that by the provisions of the charter (Laws of 1897, chap. 378, §§ 255-264) the corporation counsel is made the legal adviser of the plaintiff in respect of his official duties, and his duty is to care for all legal mat- , ters connected with the administration of his office. But such fact in nowise dispenses with the command of a statute requiring an act to be done as a condition precedent to the exercise of aright.
We, therefore, reach the conclusion that this court is without jurisdiction to entertain the appeal. It should, therefore, be dismissed.
Van Brunt, P, J., and O’Brien, J., concurred; Ingraham and McLaughlin, JJ., dissented. .