From the return of the magistrate this case had its inception on the 19th of October, 1923, when Sophie Kriegel, the wife of the appellant, made affidavit charging the appellant with being a disorderly person, in that he neglected to provide for her according to his means. The appellant then through his counsel consented to pay his wife ten dollars per week without prejudice to the renewing of the application, and further proceedings in this complaint seem to have been held in abeyance.
On April 4, 1924, because the appellant was in arrears, these proceedings were renewed and the papers show that on that date the appellant plead guilty to the charge of being a disorderly person and was ordered by the magistrate to pay twelve dollars per week until the arrears were liquidated and then ten dollars per week, and that, if default was made, the magistrate ordered that then it would be necessary for the defendant to give a bond that he would comply with the order.
On July 1, 1924, the appellant was brought to court again and on the report of the probation officer that the conditions imposed on April fourth had not been complied with, the appellant was ordered to give bond to comply with them and in default thereof to stand committed to the city prison, or jail, or workhouse for a term not to exceed twelve months. By this last order the appellant’s probation was revoked.
It is from this last order of July 1, 1924, that the appellant appeals on the ground that the magistrate should have allowed the appellant’s request for an adjournment so that his counsel could be present and also that the magistrate could have presented to him an affidavit and doctor’s certificate that the appellant was ill and unable to work.
The appellant claims that the denial of the adjournment is ground for the reversal of the order revoking probation and com*72mitting the defendant to prison in default of a bond to comply with the order of support.
These proceedings are instituted, not to punish the defendant, but to secure support for the neglected wife. When the defendant plead guilty to being a disorderly person the magistrate could have insisted on a bond, but taking advantage of the latitude given him by the Inferior Courts Law (§ 74) and of section 11a of the Code of Criminal Procedure, he decided to give the defendant a chance on probation.
In this case there is no question that the appellant violated the terms of his probation by not contributing as directed to the support of his wife, and the conditions of his probation being specific, and their violation undisputed, the doctrine laid down in the case of People ex rel. Stumpf v. Craig (79 Misc. 98) does not apply.
The action of the magistrate in revoking probation was justified and I concur with my colleagues in affirming the judgment of the magistrate.
The corporation counsel argues in his brief that an appeal does not lie to this court from an order revoking the order placing the defendant on probation to comply with the order to support. His argument in brief is that the appeal powers of the Court of Special Sessions in cases of this kind are derived from subdivision d of section 74 of the Inferior Courts Act, and that such appeals must be taken as provided by section 94 of the same statute, which provides for the continuance of the right to appeal which existed at the time of the enactment of the Inferior Courts Act in 1910. At that time the provisions for appeals from Magistrates’ Courts was contained in sections 749 and 750 of the Code of .Criminal Procedure, which limits the grounds of appeal to a review of an erroneous decision or determination of law or fact upon the trial, or a judgment upon conviction. I think that there is great merit in this contention of the corporation counsel but as it was not raised by a motion of the respondent to dismiss the appeal I do not think that it is necessary to pass on this question at this time.
I, therefore, vote to affirm the judgment of the magistrate for the reason above stated.
McInerney, J.:I vote to affirm the judgment of the magistrate.
Judgment of conviction in all respects affirmed and it is further ordered that the appellant present himself before the Appellate Part, at twelve o’clock noon on November 18, 1924, at 32 Franklin street, borough of Manhattan, and submit himself to execution of the judgment of this court.