N. Y. Rep.] Opinion of the Court, per ANDREWS, Ch. J.

by the fire, and if counsel can be deemed to have denied that the legal ownership of the structures was in the owners of the land at the time of the fire, the denial is very indistinct and certainly is not justified by the facts or the law. The defense comes to this: That as the plaintiffs, by their contract with third persons, have imposed upon them the risk and expense of furnishing complete structures, and have assumed no liability until the structures are completed, they had no insurable interest and have sustained no loss. But the contract relations between the plaintiffs and the contractors is a matter in which the defendant has no concern. When the policy was issued it could not be known whether the contractors would perform their contract. If they abandoned it the owners would derive such advantage as would accrue from the partial construction of the buildings prior to such abandonment. It is possible that if the defendant is compelled to pay the policy the plaintiffs may, if they insist upon their rights against the contractors, get double compensation, unless they should be adjudged to hold the fund recovered for the contractors. But, however this may be, the owners had an insurable interest to the whole value of the buildings on their land, and the defendants neither can compel the plaintiffs to put the loss on the contractors, nor can they resort to the terms of the building contract to diminish the liability for an actual loss within the terms of the policy.

The fact that improvements on land may have cost the owner nothing, or that if destroyed by fire he may compel another person to replace them without expense to him, or that he may recoup his loss by resort to a contract liability of a third person, in no way affects the liability of an insurer, in the absence of any exemption in the policy. (See Clover v. Greenwich Ins. Co., 101 N. Y. 277; Kernochan v. N. Y. Bowery F. Ins. Co., 17 id. 428; Riggs v. C. M. Ins. Co., 125 id. 7; International Trust Co. v. Boardman, 149 Mass. 158.) The judgment should be affirmed.

All concur, except MARTIN and VANN, JJ., not sitting.
Judgment affirmed.

THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. ANNIE GILES and DORA GILES, Respondents.

1. CODE OF CRIMINAL PROCEDURE, § 204. Section 204 of the Code of Criminal Procedure, providing for the manner in which the testimony shall be taken and authenticated, under the procedure authorized by part IV, relating to criminal actions prosecuted by indictment, does not apply to the procedure authorized by part V, relating to Courts of Special Sessions and Police Courts.

2. DUTY OF MAGISTRATES TO PRESERVE TESTIMONY. While there is no provision in part V of the Code of Criminal Procedure expressly requiring it, it is the duty of magistrates to keep or have kept under their direction minutes of the testimony taken upon the trial of the cases therein provided for, to the end that their determinations as to the facts may be reviewed upon appeal.

3. APPEAL FROM COMMITMENT OF CHILDREN - CODE OF CRIMINAL PROCEDURE, 749-RETURN OF EVIDENCE. Where, however, on an appeal, under the provisions of section 749 of the Code of Criminal Procedure, from a commitment of children pursuant to the provisions of section 291 of the Penal Code, the affidavit upon which the appeal is allowed does not allege any errors with reference to a determination of the facts, the evidence is not required to be returned, and the failure of the magistrate to preserve it furnishes no ground for a reversal of the commitment.

People v. Giles, 12 App. Div. 495, reversed.

(Argued February 8, 1897; decided March 2, 1897.)

APPEAL by the New York Society for the Prevention of Cruelty to Children from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 6, 1897, which reversed a judgment of the Court of General Sessions of the city and county of New York, affirming judgments of commitment of children to an institution, made under section 291 of the Penal Code, and remitting the case to that court with directions to order a new trial under the provisions of the Code of Criminal Procedure. The facts, so far as material, are stated in the opinion.

Elbridge T. Gerry and W. M. K. Olcott for appellant. The Supreme Court erred in holding that in every trial, whether

summary or not, especially when the charge which is tried is criminal in its nature, it is the duty of the court or magistrate, before whom the trial is had, to reduce the evidence to writing. (People ex rel. v. Neilson, 16 Hun, 214; In re Hogan, 55 How. Pr. 458; L. 1895, ch. 601, § 5; People v. Ewer, 141 N. Y. 129; Code Crim. Pro. $$ 204, 756.) The Supreme Court erred in supposing that in the petition on appeal there was any allegation of error requiring the production of evidence before the Court of General Sessions. (Nelson v. Village of Canisteo, 100 N. Y. 89.) The conclusion arrived at by the Supreme Court, on which it ordered a reversal, was purely a matter of inference and not warranted by the facts. (Bauer v. Cabanne, 11 Mo. App. 114; Van Every v. Flanders, 17 Mo. App. 240.) A new trial should not be ordered unless there is some serious error pointed out in the existing commitments. (Tracey v. Altmyer, 46 N. Y. 598.)

Hugh O. Pentecost for respondents. This appeal will not be heard by this court, there being nothing in the order of reversal herein to show that the new trial was granted for errors of law only. (People v. Poucher, 99 N. Y. 610; People v. Donovan, 101 N. Y. 632; People v. Brooks, 131 N. Y. 321.) After the acquittal of Mary Giles the court erred in not reversing the judgment against Dora Giles and Annie Giles and discharging them. (People ex rel. v. N. Y. Catholic Protectory, 106 N. Y. 610; In re Moses, 13 Abb. [N. C.] 1.) The Court of General Sessions erred in not discharging the defendants-respondents from custody, on the ground that the evidence returned to said court was insufficient to sustain a commitment. (Barbour's Cr. Law [3d ed.], 1216; People v. Phillips, 1 Park. 95; Geter v. Comrs., etc., 1 Bay, 357; Morris v. People, 1 Park. 441; Morewood v. Hollister, 6 N. Y. 309; People ex rel. v. Hamilton, 39 N. Y. 107; People ex rel. v. Board of Police, 39 N. Y. 506; People ex rel. v. Smith, 45 N..Y. 777; People ex rel. v. Hulburt, 46 N. Y. 114; People ex rel. v. Betts, 55 N. Y. 602; People ex rel. v. Board of Police & Excise, 69 N. Y. 411; People ex rel. v.

Opinion of the Court, per HAIGHT, J.

[Vol. 152.

Board of Police, 72 N. Y. 417; People ex rel. v. Nichols, 79 N. Y. 589; People ex rel. v. Board of Fire Commissioners, 100 N. Y. 85; Freeman v. Ogden, 40 N. Y. 105.)

HAIGHT, J. On the 21st day of June, 1896, the respondents, being children under the age of sixteen years and of the age of five and seven years respectively, were arrested and brought before a magistrate for the city of New York, upon a complaint charging that they were found improperly exposed and neglected by their parents, and in a reputed house of assignation and prostitution and without any proper guardianship, in violation of the Penal Code of the state of New York. Thereupon, a hearing was had before the magistrate, resulting in a commitment of the children to the "Missionary Sisters of the Third Order of St. Francis." From the judgment so entered, the mother of the children took an appeal to the Court of General Sessions, pursuant to section 749 of the Code of Criminal Procedure. The magistrate, in his return, among other things, certified that the testimony and evidence taken by him upon such hearing was not reduced to writing, except in so far as the same was contained in the complaint and papers of which copies were annexed and made a part of his return. It was upon this certificate that the Appellate Division reversed the judgment of the Court of General Sessions, which affirmed the commitment of the children. Upon this review it was earnestly argued that the preservation of the testimony taken by the magistrate was not necessary or required, and that such failure to preserve the testimony furnished no ground for reversal.

The children were committed pursuant to the provisions of section 291 of the Penal Code. The appeal was brought under the provisions of section 749 of the Code of Criminal Procedure. This section is included in part five of the Code, which provides for a complete system of procedure, independent of that provided for in part four, except in so far as the provisions of part four are expressly adopted in part five. Section 204, which provides for the manner in which the tes

N. Y. Rep.]

Opinion of the Court, per HAIght, J.

timony shall be taken and authenticated, under the procedure authorized by part four, cannot, therefore, be held to apply to the procedure authorized by part five. (People ex rel. Commissioners of Public Charities v. Cullen, 151 N. Y. 54, 57.) We have not found any provision included within part five which expressly requires that the testimony taken upon the trial of the cases therein provided for shall be reduced to writing and preserved; but that the testimony should be preserved we think is clearly inferred. Section 750 provides that “an appeal may be allowed from an erroneous decision or determination of law or fact upon the trial." Here we have an express provision authorizing a review of a determination of fact. Such a review would be impossible if the testimony should not be preserved. The provision giving the right to review upon the facts necessarily contemplates the preservation of the evidence.

Again, the appeal provided for by section 749 is a substitute for the review formerly had of proceedings authorized by this part of the Code under the writ of certiorari. The question here under consideration was fully considered by this court in the case of Mullins v. People (24 N. Y. 399). It was then held that a common-law certiorari to review a summary conviction under a penal statute brings up, not only questions affecting the jurisdiction of the magistrate and the regularity of the proceedings, but the question whether there was any evidence to warrant the conviction. SELDEN, Ch. J., speaking for the court, says: "An impression has prevailed to some extent in this state, founded upon several decisions of our late Supreme Court, that the power to review upon a common-law certiorari is confined * to questions touching the jurisdiction of the subordinate tribunal, and the regularity of its proceedings." He then adds, "This has never, I think, been very cordially assented to; and, from my examination of the subject, it seems to me clear that, at least in that class of cases where the writ is used to remove a summary conviction had before a magistrate under a penal statute, the doctrine is erroneous. It is true, as has been often said, that such a

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