HOUGHTON, J.:

The defendant was the owner of a dairy farm which, together with a herd of cows, was leased to the complaint on shares. Soon after the complainant moved upon the defendant's farm he bid off a cow at a public auction. The vendors refused to deliver the cow to him unless the defendant would sign a note for the purchase price, which was fifty dollars and fifty cents. This the defendant agreed to do upon the understanding that the cow should be his if he was compelled to pay the note. When the note became due the complainant did not pay it and the same was paid by this defendant. At the time of the purchase of the cow she was placed on the farm owned by the defendant and occupied by the complainant and was there at the time the defendant paid the note. Some time later the defendant heard a rumor that the complaint had mortgaged the cow and in the absence of the complainant he went to the farm in the daytime and openly took the cow away. Thereupon the complainant went before a magistrate and obtained a warrant for the arrest of the defendant for larceny. The information charged the defendant with committing "the crime of violating section 1298 of the Penal Code" in feloniously taking the cow claimed to belong to the complainant "from the fields where such cow was grazing and taking same in the direction of Cortland," where the defendant resided, without the consent or authority of the complainant. No value of the property was stated. On arraignment after he had procured counsel the defendant moved for his discharge on the ground that the information was insufficient, and upon that being denied he further moved for his discharge on the ground that the magistrate sitting as Court of Special Sessions had no jurisdiction to try him. Upon this motion being denied a jury was impaneled and a trial had. The complainant was sworn as a witness and testified that the understanding with the defendant when he signed the note was that if the defendant should pay it the cow should be his, and acknowledged that the defendant did pay the note but claimed that after such payment he repaid the amount to him. The defendant denied repayment and testified that such payments as were made were not upon the note but upon other dealings had between the parties, and that he took the cow openly, claiming title, believing that she belonged to him. The only proof of value was the undisputed testimony of one witness who said the cow was worth forty dollars at the time of taking. At the conclusion of the evidence the defendant moved for his discharge both on the ground that no crime had been shown and upon the further ground that the Court of Special Sessions had no jurisdiction to try him for the offense because the value of the property was more than twenty-five dollars. Such motion was denied and the jury found the defendant guilty. An appeal was allowed to the County Court of Cortland county, which affirmed the judgment, whereupon defendant appealed to this court.

Assuming under the authority of People v. Smith (86 Hun, 485) that the information was sufficient upon which to base a warrant for larceny generally, it was not sufficient to show the crime of petit larceny which the Court of Special Sessions had jurisdiction to try because it was not shown that the value of the property did not exceed twenty-five dollars. If property of the value of more than twenty-five dollars is stolen the crime committed is grand larceny in the second degree (Penal Law, § 1296), trial for which can be had only after indictment. (Code Crim. Proc. §§ 4, 222.) Petit larceny is a misdemeanor and can be committed only by the stealing of property of the value of twenty-five dollars or less. (Penal Law, §§ 1298, 1299.) Courts of Special Sessions are given jurisdiction by subdivision 1 of section 56 of the Code of Criminal Procedure to hear and determine the crime of petit larceny, but have no jurisdiction to hear and determine charges of larceny in any other degree. Not only did the information fail to show that the value of the cow was twenty-five dollars or less, but the undisputed evidence upon the trial was that she was worth forty dollars. It thus affirmatively appeared that if in fact any crime was committed it was that of grand larceny in the second degree which the Court of Special Sessions had no jurisdiction to hear and determine. A Court of Special Sessions being a court of limited jurisdiction the fact that it has jurisdiction in a particular case must affirmatively appear. ( People v. McLaughlin, 57 App. Div. 454.)

On his arraignment the defendant appeared without counsel and did not raise objection to the jurisdiction of the court, but asked for an adjournment for the purpose of procuring counsel. While such failure to raise objection at the first opportunity might possibly be deemed a waiver of irregularities if the court had jurisdiction, as was held in People v. Shaver ( 37 App. Div. 21) and in People v. Huggins (110 id. 613) and in People v. Winness (3 N.Y. Cr. Rep. 89), there could be no waiver of the jurisdiction of the court and no consent could confer jurisdiction upon a court which had none. ( Cancemi v. People, 18 N.Y. 128.) The trial of the defendant, therefore, by the Court of Special Sessions was a nullity.

In addition the proof showed that no crime was committed. The agreement was that if the defendant paid the note given for the purchase price of the cow she should become his property Confessedly he did pay the note. The complainant says that he repaid the defendant and the defendant disputes it. Even if the complainant is right in his contention the defendant had sufficient reason to claim title to the cow, and from his standpoint there is nothing to impugn his good faith in so doing. Section 1306 of the Penal Law provides that it is a sufficient defense to a charge of larceny that the property was appropriated openly and avowedly, under a claim of title preferred in good faith, even though such claim is untenable.

Assuming, therefore, that the jury had jurisdiction to render a verdict of guilty against the defendant, on the facts established the verdict would have been wrong and must have been set aside.

The judgments of the County Court and of the Court of Special Sessions are reversed and the defendant discharged.

All concurred.

Judgments of conviction reversed and defendant discharged.