Opinion
November, 1923.
This criminal action was instituted in the Magistrate's Court of the City of New York, Borough of Brooklyn, Seventh District, the defendant being charged with carrying a pistol without a permit. On the production of a permit issued by Mr. Justice Strong, the defendant was discharged, the magistrate refusing to direct the return of either the permit or the pistol. If the defendant felt aggrieved by this decision, he should have caused the entry of an order by the magistrate and taken the necessary steps to have the determination reviewed in the County Court. This action was never pending in the Supreme Court, and there was, accordingly, no jurisdiction in the court to make an order in an action not pending therein. This court decided in the case of People v. Tarantolo ( 202 App. Div. 707; affd., 236 N.Y. 627) that the issuance of a permit by a magistrate outside of the city of New York to a person residing in the city of New York, was illegal and in violation of the power conferred by the Penal Law. The order appealed from is accordingly reversed upon the law. Kelly, P.J., Rich, Manning, Kelby and Kapper, JJ., concur.