People ex rel. Farley v. Crane , 88 N.Y.S. 343 ( 1904 )

Ingraham, J.

(concurring):

I concur in the conclusion arrived at by Mr. Justice Laughlin. The writ that was issued in this case commanded the city magistrate, the chief of police and the captains of police, the keeper of the city prison and all his deputies, and any person having the custody of the relator, to produce the relator, together with the time and cause of his imprisonment and detention before a Special Term of the Supreme Court, and also to certify fully and at length to the Supreme Court the day and cause of imprisonment of the relator and to make a full and complete return to the Supreme Court of all papers, etc., bearing upon the commitment and detention of the relator. This writ is one that is not authorized by the Code of Civil Procedure, or any other authority that I know of. The form of a writ of habeas corpus is prescribed by section 2021 of the Code of Civil Procedure, and that writ requires the officer who has the custody of the relator to produce the relator before the court, together with the time and cause of his imprisonment and detention. The form of a writ of certiorari to inquire into the cause of detention is prescribed by section 2022 of the Code. By that writ the city magistrate or other officer to whom the writ is addressed is required to certify fully and at large to the court the day and cause of the imprisonment of the relator. There is no authority for combining these two writs in one writ. The object to be attained is entirely different. The parties to whom the writs are addressed are entirely different. The magistrate who issues the commitment under which a person is arrested is not a proper party to a writ of habeas corpus, as the relator is not in his custody. Although it is contemplated that these writs may issue at the same time, the practice of combining these two writs in one should not be encouraged. Treating this writ as a writ of habeas corpus, the officer who had the custody of the relator made no return, produced no warrant of commitment or other authority which justified him in holding the relator. The return of the magistrate had nothing to do with the writ of habeas corpus, nor should it have been received in answer to that writ. As there was no warrant or commitment produced before the court which justified the detention of the relator I think the court should have ordered his discharge, and the relator having been discharged, it was unimportant to consider the return of the magistrate or to determine whether a warrant or commitment not produced' had been properly issued.

Order reversed, writ sustained and relator discharged.