First Department, May, 1908. [Vol. 126. the primary election, specifying location of each polling place, and, among other things, the conventions to which they are to elect delegates. If the board of elections accepted said statement they would have been required to give notice that in every election district in the Assembly district delegates to all the alder manic district conventions were to be voted for by the Democratic electors. Section 53 of the Election Law defines the qualifications of voters at primary elections as follows: "No person shall be entitled to vote at any primary unless he may be qualified to vote for the officers to be nominated thereat on the day of election. They shall possess such other qualifications as shall be authorized by the regulations and usages of the political party or independent body holding the same." The Election Law was enacted in 1896 (Laws of 1896, chap. 909) and the Primary Election Law was not enacted until two years later; but if the Legislature in enacting the Primary Election Law intended that it should be complete in itself, it is reasonable to presume that it would have repealed section 53 of the Election Law hereinbefore quoted, or would have in express terms re-enacted a provision defining the qualifications of voters at primary elections. Inasmuch as it did neither it must be assumed that it was intended to let section 53 of the Election Law remain in force. Subdivision 3 of section 4 of the Primary Election Law provides, among other things, for the division, thirty days before a primary election, of every ward or Assembly district in the city "into primary districts, each of which shall consist of two contiguous election districts, except that in case there is an odd number of election districts in such ward, Assembly district or village, the highest numbered election district shall be a primary district by itself." This provision is not controlling on the question now presented for decision and has no natural bearing thereon. If delegates to a ward convention are to be elected I do not understand that it is necessary to join an odd district of such ward to another election district in the Assembly district to constitute a primary district (Primary Election Law, § 4, subd. 3), and even if any are required to be so joined the ballots of the respective election districts are expressly required by law to be placed in separate boxes (Id. §§ 6, 7), even if they App. Div.] First Department, May, 1908. would not in all cases be distinguishable by having the election districts printed thereon. (Id. § 7, subd. 1.) The statement filed by the Democratic organization is in conflict with article 2 of the rules and regulations of that organization relating to "Representation" filed with the board of elections, which provides as follows: "The unit of representation to be observed in the election of delegates to the County General Committee and to the several nominating conventions shall be the Assembly District and the Annexed District. "Where a portion of an Assembly District is within the political division for which the committee or convention is elected, such portion shall be deemed to be an Assembly District for the purpose of representation, and the rules and regulations applying to an Assembiy District, shall in all things apply to such portion of an Assembly District." Subdivision 2 of section 9 of the Primary Election Law provides as follows: "The rules and regulations of parties and of the conventions and committees thereof shall not be contrary to or inconsistent with the provisions of this act or of any other law, and shall not be amended except upon reasonable notice." It does not appear that the rules as filed have been amended. Section 10 of the Primary Election Law provides that "The delegates to every party convention in and for any political subdivision, chosen in any city or village to which this act is applicable, shall be apportioned among the units of representation in such city or village as nearly as possible upon the basis of the number of votes cast therein for the party candidate for Governor at the last preceding general election, except that in any county which is not wholly included within the boundaries of a city of the first class, the general committee of the party may, by its rules and regulations, continue any existing system of representation in conventions." The practice of the Democratic party which, it is claimed, has existed for more than 100 years, of having all the Democratic electors in an Assembly district participate in the selection of delegates to a district convention to nominate officers to be voted for the ensuing election in only part of the Assembly district, is manifestly wrong. It is unnecessary to consider the statutory law as it existed prior to the adoption of section 53 of the Election Law herein First Department, May, 1908. [Vol. 126. quoted. The Legislature has prescribed as a test of the qualifications of a voter at a primary election that he shall be eligible to vote for the officers to be nominated at the convention to which delegates are to be elected. It is quite clear that this limits the right of electors to participate in the election of delegates to conventions representing the election districts in which they are qualified voters. The construction for which the learned counsel for the respondent contends, would, as stated in the objections filed with the board of elections, permit electors of the Assembly district not residing in the aldermanic district to control the nomination for the office of alderman, although they could not vote for the nominee on election day. Such a construction is opposed to the principles of our government and is contrary to the letter and spirit of the statute. It would seem that article 2 of the rules and regulations of the Democratic party for the county of New York, filed with the board of elections, which does not appear to have been amended in accordance with subdivision 2 of section 9 of the Primary Election Law herein quoted, conforms to the statute but that the statement filed for the primary election in 1907 does not. Article 2 of the rules and regulations of the Democratic party, as applied to the facts presented by the record, shows that each aldermanic district in the thirty-fifth Assembly district should be deemed an Assembly district for the purpose of representation, but the statement filed does not conform to this rule. The statement is erroneous in that it should have provided that the unit of representation for the aldermanic conventions should be the aldermanic districts and that the Democratic electors in the respective aldermanic districts, the election districts comprising which should have been set forth, should elect the delegates to the respective aldermanic conventions. The notice for the election of delegates would then, in conformity therewith, call upon the electors of the respective aldermanic districts to elect delegates to the respective aldermanic conventions. This construction of the law in nowise interferes with the management and control of the political affairs of the party, but secures to the electors thereof the rights conferred by the statute. Although the primary election for which this statement was filed has been held, no objection in that regard is presented, but on the contrary we are asked to decide the question as one of public App. Div.] First Department, May, 1908. importance likely to frequently arise, and we do so for the guidance of the party and the board of elections in the future. It follows that the order should be reversed and motion denied, but inasmuch as costs are not demanded, without costs. INGRAHAM, CLARKE, HOUGHTON and Scorr, JJ., concurred. Order reversed and motion denied, without costs. THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. CORDELIA FLAHERTY, Defendant. No appeal lies to the Supreme Court from a conviction in the Court of Special Sessions of the city of New York on which sentence is suspended. Section 750 of the Code of Criminal Procedure, as amended, applies only to appeals authorized to be taken to the County Court and to the Court of General Sessions. MOTION by the plaintiff, The People of the State of New York, to dismiss an appeal by the defendant from a judgment of the Court of Special Sessions of the city of New York, borough of Manhattan, adjudging the defendant guilty of a misdemeanor for having obtained lodging, food and accommodation at a boarding house other than an emigrant lodging house, without paying therefor, with intent to defraud the proprietor thereof, and for having surreptitiously removed her baggage from the boarding house after obtaining credit thereat, without paying her bill, in violation of the provisions of section 382 of the Penal Code, and suspending sentence. Robert C. Taylor and Robert S. Johnstone, for the plaintiff. LAUGHLIN, J.: The motion is made upon the ground that the determination of the court convicting the defendant and suspending sentence without APP. DIV.--VOL. CXXVI. 5 First Department, May, 1908. [Vol. 126. judgment is not appealable. In People v. Markham (114 App. Div. 387) the court held, in July, 1906, that no appeal lies from a conviction on which sentence is suspended, because the right of appeal is statutory, and that appeals from the Court of Special Sessions in Greater New York were only authorized by section 1414 of the Greater New York charter in cases where an appeal lies from a judgment in an action prosecuted by indictment, which was regulated by section 517 of the Code of Criminal Procedure, which limited the appeal to an appeal from a judgment of conviction after indictment. At that time section 750 of the Code of Criminal Procedure, which was quoted in the opinion of this court as if applicable to appeals from the Courts of Special Sessions in Greater New York, provided as follows: "An appeal may be allowed for an erroneous decision or determination of law or fact upon the trial." The Legislature, at its next session after that decision was announced, amended said section 750 of the Code of Criminal Procedure by chapter 685 of the Laws of 1907, by adding thereto the following clause, to wit: "and for the purposes of an appeal in all cases now pending or hereafter brought, a conviction for a criminal offense shall be deemed a final judgment, although sentence shall have been suspended by the court in which the trial was had, or otherwise suspended or stayed.” It is now urged in behalf of the motion that this amendment only applies to appeals from Courts of Special Sessions and other inferior courts of criminal jurisdiction authorized to be taken to the County Court, and does not apply to appeals from Courts of Special Sessions in Greater New York, which may only be taken to the Supreme Court. (Greater N. Y. Charter [Laws of 1901, chap. 4661, § 1414; Code Crim. Proe. § 317.) It is quite probable that the author of the amendment to section 750 of the Code of Criminal Procedure, herein quoted, intended to change the rule as stated in People v. Markham (supra), when a defendant convicted of a crime is deprived of the right to review the conviction because the court, perhaps of its own motion or on the recommendation of the prosecuting officer and without the consent of the defendant, saw fit to suspend sentence, instead of pronouncing judgment on the conviction; and it may well be that he fell *See Laws of 1862, chap. 360-REP. |