In re Lewinski

Lawrence, J.

Under the fourth -section of chapter 496 of the Laws of 1881, I think it may be argued with much force that the House of Refuge is “ an institution authorized by law to receive children on final commitment, and to receive and derive compensation therefor from city or county authorities,” and that, therefore, the institution was bound to receive the relator on the commitment of the court of special sessions. (Wallack agt. The Mayor, &c., 3 Hun, 84). In the view which I take of this case it is not, however, necessary, to pass finally on this question. It appears from the return of the sheriff that on the day after the conviction of the prisoner, to wit, on the 22d day of December, 1881, he took him to the House of Refuge and Detention, and then and there tendered the said Morris Lewinski to the superintendent and managers, to be dealt with according to law; but that the said superintendent and managers then and there refused to receive the said Lewinski, on the ground that he was committed for a specified time, and that, therefore, he (the sheriff) returned the said Lewinski to the city prison, the place from whence he had taken him. By the act of 1881, already referred to, it is provided that “ any such child convicted of any misdemeanor shall be finally committed to some such institution, and not to any prison or jail or penitentiary longer than is necessary for its transfer thereto.” If this were a direct proceeding to compel the House of Refuge to receive the petitioner into its custody, it would be necessary to definitely pass upon the question whether the House of Refuge is or is not such an institution as is described in section 4 of the act of 1881; but it is not such a proceeding. The matter comes before me on habeas corpus, to inquire into the cause of the detention of the petitioner. It is quite plain that there is no justification under the commitment for his detention in the city prison. The act of 1881 expressly forbids the detention of a child, of the age of the prisoner, who has been convicted of any misdemeanor, in any prison or jail ór penitentiary longer than is necessary for its transfer to one of the institutions mentioned in the act. There has been an attempted transfer in this case, so that it cannot be said that sufficient time has not elapsed to enable the authorities to have the transfer made. Is the boy to stay in the city prison until the question of the liability of the House of Refuge to receive him is settled by legal proceedings ? Such cannot have been the intention of the legislature. I think, therefore, that there is no justification for the prisoner’s detention in the city prison, and, as the House of Refuge has refused to receive him from the sheriff, that he is entitled to his discharge; and an order to that effect will be entered.