Opinion
Argued March 21, 1961
Decided March 30, 1961
Appeal from the County Court of Monroe County, CLARENCE A. GRUSCHOW, J.P.
John J. Leonard for appellant.
John J. Conway, Jr., District Attorney ( Kenneth J. Smith of counsel), for respondent.
Defendant was convicted of a violation of subdivision 5 of section 70 of the Vehicle and Traffic Law — a misdemeanor. The information was sworn to before a sergeant of the Sheriff's office who was not a notary public. He had no authority to administer the oath unless authorized by section 74-b (now § 208) of the Vehicle and Traffic Law. That section, however, authorizes him to take oaths only where "a traffic summons has been served". The People's witness, the arresting officer, flatly testified that no traffic summons had been served. Immediately after the establishment of this fact, defendant moved for a dismissal of the information. The motion should have been granted since the court had no jurisdiction ( People v. Scott, 3 N.Y.2d 148, 151). We do not feel that we may "reject the literal meaning" of section 74-b as respondent suggests.
The judgment of the County Court should be reversed, the judgment of conviction vacated, and the information dismissed.
Judges FULD, FROESSEL, VAN VOORHIS, BURKE and FOSTER concur in Per Curiam opinion; Chief Judge DESMOND and Judge DYE dissent and vote to affirm upon the ground that this was, at worst, an irregularity which could not affect jurisdiction.
Judgment reversed and the information dismissed.