¶1The statute of 1860 (Sess. Laws of 1860, chap. 508, p. 1007) provides that “any appeal from or amendment to” an order like that before us, shall be “exclusively” to the court of special sessions. (§4.) I think, therefore, that we should not review the proceedings. It is no answer to say that the court of sessions will not, for it may be compelled to do so by mandamus; and as no period is limited for an appeal, the relator can bring the matter before the court, to which the statute gives “ exclusive ” jurisdiction, at any time. He is not, therefore, with.out remedy.
¶2I think the writ should be dismissed.
¶3Sutherland, J., concurred.
¶4It seems to me that where an act speaks of conviction, it imports a trial, and a trial imports the examination of the accused, or some other witness, at the trial, in support of the charge. In this case there was no such examination. The only person examined was the relator, himself, who expressly denied the charge. On the 29th of September, the wife indeed made an affidavit of the abandonment; but she was not examined at the trial. The trial and conviction were on the 2d of October; when, as I have said, no witness was examined, in support of the charge.
¶5The relator, in his examination, swore that he was by occupation a machinist; and the magistrate, as I have said, ordered him to pay $20 weekly for the support of his wife. This is, probably, more than he can earn, throughout the year. We could- not, perhap's, reverse the conviction on this ground; but I am in favor of reversing it on the ground of the total want of evidence.
¶6Certiorari dismissed.
¶7Clerke, Sutherland arid Cardozo, Justices.]