' The defendant was arraigned before a city magistrate, accused of the crime of violating the provisions of section 331 of the Sanitary Code of the Department of Health of the City of New York in that he unlawfully held, kept and offered for *304sale as food 320 pounds of “ spot eggs,” which were not healthy, fresh, sound, wholesome and safe for human food. On this charge, contained in a deposition taken before the magistrate, the defendant was held for trial in the Court of Special Sessions, and the magistrate thereupon remitted all the papers to the district attorney in order that a proper information might be filed on which the defendant was to be arraigned for trial.
Freschi, J.:On the facts charged and proofs adduced I am satisfied that the defendant is guilty of the act alleged in the magistrate’s information.
After the holding of the defendant for trial in this court by the committing magistrate the district attorney failed to file any information as required by the statute. However, the defendant appeared in this court and entered a plea of not guilty. When the plea was entered the clerk read from the magistrates deposition. The defendant was subsequently tried ¡and adjudged guilty. His motion to arrest judgment was denied, and now, on the reargument and reconsideration of that motion, the question of jurisdiction is raised.
My reading of the case of the People v. Perrin (170 App. Div. 375) leads me to the opinion that it is authority for the proposition - that unquestionably this court, while it has the power to hear and determine this class or grade of offense irrespective of the fact's charged, acquires jurisdiction Of the defendant’s person in this particular case “ by the filing of an information and his plea thereunder.” Both of these conditions precedent must be present in every record. Only one of these, the latter, is present. The next question suggested, therefore, is: Chn the defendant waive the filing of such an information and can he be deemed to have waived any illegal method employed to secure his presence in court and by which his plea *305to the information was obtained? Is the trial without objection under these circumstances to be deemed a waiver of the requirement that an information shall be filed ? The answer is to be found, in my opinion, in the language used by Justice High of the Appellate Division in writing for the court, at page 276 of the Pen-in case. He said, “ The Court of Special Sessions of the city of Hew York * * * acquires jurisdiction to hear and determine misdemeanors committed in the city through the filing of an information by the district attorney. (Code Crim. Pro., secs. 221, 741, 742, 743.) ”
The defendant has certain well established rights here. He is entitled to' have the specific crime set forth in an information to be filed by the district attorney. He may attack the sufficiency of the information and shall be entitled to a discharge if the facts do not constitute a crime; and I hold that where no information is filed the position of the defendant justifies the contention that if he is entitled to a dismissal because of the insufficiency of the facts charged in a given information the absolute failure, as here, to file any information is such an omission as compels the court to discharge the defendant. Section 44 of the Inferior Criminal Courts Act provides the procedure for transfer of the papers “ to the district attorney for trial, upon information, by three justices in the Court of Special Sessions.” And in People ex rel. New York Disposal Corp’n v. Freschi, Justice, etc. (173 App. Div. 189), it seems to be a necessary jurisdictional allegation in the information to recite the making of 'the order of transfer by the magistrate. The importance of having an information in this court before a trial starts goes to the constitutional protection against another prosecution for the same offense. Since this important step in the statutory requirement has not been complied with I must vote to arrest judgment in this case for lack of jurisdiction, and the district attorney should be permitted, under section 470 of the Code of Civil Procedure, to frame and file a proper informa*306•tion based on the facts appearing in the complaint before the committing magistrate.
Justice Herbert concurs.