The opinion
The relator was convicted of a misdemeanor upon an information charging bim with violating the zoning ordinance of the town of North Castle, Westchester county, N. Y. After conviction, he was sentenced to pay a fine or, in the alternative, to serve ten days in the penitentiary. He then sued out a writ of habeas corpus and an order of certiorari. The Court of Special Sessions made return of all the proceedings before it. The writ was sustained and the relator discharged. In our opinion, the order must be reversed. The only question before the learned Special Term was whether jurisdiction of the crime charged and the person of the defendant was vested in the court pronouncing the judgment. (People ex rel. Bailey v. McCann, 222 App. Div. 465 .) Whether the ordinance in question was confiscatory and, therefore, unconstitutional depended upon the facts to be developed upon the trial. (Penna. Coal Co. v. Mahon, 260 U. S. 393, 413 .) In our opinion, the ordinance is not void upon its face. It is presumptively valid. (People v. West, 106 N. Y. 293 .) Whether this particular ordinance is confiscatory and, therefore, unconstitutional is a mixed question of law and fact. This question cannot be determined in this proceeding. Order sustaining writs of habeas corpus and certiorari reversed upon the law, writs dismissed, and the *892 prisoner remanded to custody. Hagarty, Johnston, Taylor and Close, JJ., concur; Carswell, J., dissents and votes to affirm.