However much the necessity of the provision here in question for a proper disposition of the causes in City Magistrates’ Courts, I feel bound to dissent from my colleagues’ conclusion that we can so construe the conflicting statutes as to uphold the conviction here.
*228The People of the State appeal in this proceeding from an order: sustaining a writ of habeas corpus, upon which writ the prisoner was brought up and discharged from custody.
The facts upon which the controversy depends are: On August 20, 1925, the relator was arraigned in the City Magistrates’ Court, Ninth District, Borough of Manhattan, of the City of New York, upon the charge of vagrancy. (Code Crim. Proc. § 887, subd. 4, cl. a.) It was alleged as the gravamen of the charge in the information that the defendant offered to commit an act of prostitution with one Edward Noeble at the premises 232 West Seventy-fifth street, in the borough of Manhattan, city of New York.
On August 20, 1925, the defendant pleaded not guilty and her trial was adjourned to August 22, 1925, when upon said date she was tried and found guilty by a city magistrate. Her sentence was postponed, however, and she was remanded to the jail until August 24, 1925, for investigation under section 98-a of the Inferior Criminal Courts Act, and the trial magistrate requested in writing that the magistrate thereafter presiding in the district in which relator was convicted impose sentence. The succeeding magistrate who presided in said court on August 24, 1925, thereupon sentenced defendant to the workhouse for 100 days.
The question on this appeal is the right of one city magistrate to try a defendant for vagrancy and to adjourn the case for sentence and request in writing that another succeeding magistrate inflict the penalty.
This question arises under certain sections of the Inferior Criminal Courts Act of the City of New York, which is chapter 659 of the Laws of 1910, since amended in certain particulars not pertinent here. Under section 88 of that act (as amd. by Laws of 1913, chap.' 372, and subsequent amdts.), whenever any person, other than a child under the age of sixteen years, is convicted in the city of New York of certain crimes, including vagrancy, other than as provided in sections 88-a and 89 of this act, the magistrate before whom such conviction is had shall, subject to the provisions of section 92 of that act [Section 92 (as amd. by Laws of 1915, chap. 531) provides for the discharge of committed persons], impose upon the person so convicted one or other of certain penalties provided. Section 88-a (as added by Laws of 1913, chap. 372), referred to as an exception to the general direction of section 88, requiring the imposition of a penalty by the magistrate before whom such conviction was had, refers to commitments for public intoxication and the establishment of a board of inebriety, to deal with that offense, and section 89 of the act (as amd. by Laws of 1913, chap. 372, *229and subsequent amdt.) refers to the commitment of females convicted of certain offenses, such as soliciting, frequenting disorderly-houses or vagrancy under subdivisions 3 or 4 of section 887 of the Code of Criminal Procedure. Section 89, however, does not except from the rule as to the imposition of penalties by the magistrate before whom the conviction was had since it in its own terms provides that when a female is so convicted of one of the offenses enumerated, the magistrate before whom such conviction is had “ shall * * * impose upon the person so convicted one or other of the penalties herein provided.”
Obviously this defendant was convicted under subdivision 4 of section 887 of the Code of Criminal Procedure and her offense is, therefore, within the definition of section 89 of the Inferior Criminal Courts Act. There is, therefore, an express statutory direction that the magistrate before whom the person is convicted shall impose the penalty provided by law, and the provisions of section 98-a of the act cannot be said to restrict this clause because they do not so purport. If it were intended to change, the system of sentence specifically prescribed for this offense it would seem that this mandatory language of section 89 would have been elided.
Section 98-a (added by Laws of 1913, chap. 372, as amd. by Laws of 1915, chap. 531) provides:
“ Remand pending investigation. After a conviction or a plea of guilty, a magistrate sitting as such or as a Court of Special Sessions may remand the defendant or admit him to bail for a period not to exceed three days for investigation before pronouncing sentence. In case of the death or disability of any such magistrate, or upon his request endorsed on the papers, sentence may be imposed by any magistrate presiding in the same court.”
Under the established principle of construction of statutes, where there is an apparent conflict, that which is general in its terms does not overrule the particular, but applies only where the particular enactment is inapplicable. In other words, where a general intention is expressed in an act and such act also expresses a particular intention incompatible with the broad direction the particular enactment is considered in the nature of the exception.
In section 175 of Mr. McKinney’s work on Statutes and Statutory Construction, a frequently accepted authority, the rule is stated thus: “ In other words, a special statute providing for a particular class of cases is not repealed by a subsequent statute general in its terms, provisions and application, unless the intent to repeal it is manifest, although the terms of the general act are broad enough to include the cases embraced in the special law.”
In a ruling by the Court of Appeals in Grimmer v. Tenement *230House Department (204 N. Y. 370) Chief Judge His cock, writing for the court, states the rule in identic words: “ The rule in such case is that a special statute providing for a particular class of cases is not repealed by a subsequent statute general in its terms, provisions and application unless the intent to repeal it is manifest, although the terms of the general act are broad enough to include the cases embraced in the special law. (City of New York v. Trustees Sailors’ Snug Harbor, 85 App. Div. 355; affd., on opinion below, 180 N. Y. 527.) ”
The order should be affirmed.
Dowling, J., concurs.
Order reversed, writ dismissed, and the prisoner remanded. Settle order on notice.