The appellant was convicted in the court of Special Sessions of the misdemeanor of assault and battery upon John G. Griffith committed in said city, and upon his conviction for the misdemeanor aforesaid he was ordered and adjudged to be imprisoned in the penitentiary of the city of *171New York for the term of three months. The habeas corpus was issued for his discharge upon the ground that he was tried and convicted of an offense over Which the court of Special Sessions did not have jurisdiction, and while the offense for which the conviction was had is now by section 219 of the Penal Code designated an assault in the third degree, it still continues to be what was before the enactment of this Code known as an assault and battery. The argument that the assault may have been a felonious one and therefore not within the jurisdiction of the court before which the trial was had, is not supported by the record of the conviction. For by that it appears that the assault and battery of which he was convicted was a misdemeanor and that was equivalent to the assertion or statement that it was an assault in the third degree, and probably a mere statement of the fact that he had been convicted of an assault and battery without anything further, would be entitled to the same consideration and effect.
Certainly where a conviction is drawn in question collaterally, as it has been by means of this writ of habeas corpus, that should be the construction adopted in support of the conviction.
The writ was properly dismissed, and the order should be affirmed.
Davis, P. J., and Beady, J., concur.