77 A.D. 148 | N.Y. App. Div. | 1902
On the petition of the relator, stating that he was restrained in his liberty within the State of Hew York, on that an information was laid against him by one Mary Kavanaugli, on a charge of.
There was no writ of habeas corpus granted, the writ of certiorari being based upon the allegation of the relator that he was restrained in his liberty. The provisions of the Code of Civil Procedure (§§ 2120-2148) do not apply, as by section 2148 it is provided that “ this article is not applicable to a writ of certiorari brought to review a determination made in any criminal matter, except a criminal contempt of court.” By section 2015 of the Code of Civil Procedure it is provided that “a person imprisoned or restrained in his liberty within the State for any cause, or upon any pretence, is entitled, except in one of the cases specified in the next section, to a writ of habeas corpus or a writ of certiorari, as prescribed in this article, for the purpose of inquiring into the cause of the imprisonment or restraint, and, in a case prescribed by law, of delivering him therefrom.”
In Matter of Lampert (21 Hun, 154) the General Term of this department held that a person who had given bail upon the limits was not in custody so as to entitle him to a writ of habeas corpus directed to his bail. Mr. Justice Barrett, in delivering the opinion
It follows that the order appealed from must be reversed and the proceeding dismissed.
Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ.a concurred.
Order reversed and proceeding dismissed.