The appellant has been convicted of the crime of grand larceny in the first degree, committed by feloniously taking $161 from the pocket of a passenger on the subway. No testimony whatever was introduced in his behalf, and no pretense is. made that he was not guilty. We are asked to set aside the judgment upon the highly technical ground that it does not appear that the interpreter in the Magistrate’s Court was sworn. In the record on appeal from the judgment of conviction it does not appear whether or n.ot the interpreter was sworn.' It is, therefore, to be presumed that the city magistrate performed his duty and administered an oath to the official who acted as interpreter., (Hilts v. Colvin, 14 Johns. 182,184; People ex rel. Manhattan R. Co. v. Barker, 146 N. Y. 304, 313; Wigm. Ev. § 2534.) Appended to the record on appeal from the judgment of conviction are the proceedings upon a motion for a new trial. If it is proper to resort to these papers for proof as to whether the oath was administered, we find an affidavit of the attorney for the defendant who represented him both upon the hearing before the magistrate and upon the trial of the indictment, stating that the clerk’s assistant who acted as interpreter “ was not sworn by said Magistrate Nolan or by the said Board of City Magistrates on September 16, 1915 [the day of the hearing], or at any time in September, 1915, to act or perform the duties of an interpreter. * * * I distinctly recall that Mr. Emil Kunzli acted as the interpreter upon the said examination, and assert that he was not sworn to act as such by Magistrate Nolan.” The attorney does not state that he bases these averments upon any subsequent or independent investigation, and it is apparent that he knew at the time of the hearing in the Magistrate’s Court that the interpreter had not been sworn. He thus stood by and with full knowledge permitted the testimony of the complaining witness to be given in evidence through an interpreter who was not sworn. No claim is made that there was any error in the translation. Now, after consenting to this course, and after a judgment of conviction, the attorney comes forward with an affidavit on motion to set aside the judgment upon this informality to which he was a party. It seems to me that such tactics should not
*307be permitted to succeed. It was just as competent for the appellant’s attorney, on behalf of his client, to waive the oath to the interpreter as it would have been for him to have waived examination, and there is no doubt that where a party against whom a witness is called knows at the time that the witness was not sworn, or discovers it before the end of the trial, and neglects to bring it to the attention of the court, he will be deemed to have acquiesced to the giving of the testimony without the sanctity of an oath. (People ex rel. Niebuhr v. McAdoo, 184 N. Y. 304.) The attorney for the defendant nowhere claims that he was not fully aware at the time of the examination that- the interpreter was not sworn; on the contrary, his affidavit shows- clearly, to my mind, that he knew that the interpreter was not sworn and regarded the informality as entirely unsubstantial. Considering the command of section 542 of the Code of Criminal Procedure, requiring the court - on appeal to give judgment without regard to technical errors or defects which do not affect the substantial rights of the parties, and in view of the evidence of waiver, the absence of any claim of error in the translation, and there being no claim even that the defendant is not guilty, I think that the judgment should be affirmed.
Judgment reversed and new trial ordered. Order to be settled on notice.