People ex rel. Higley v. Millspaw

256 A.D. 852 | N.Y. App. Div. | 1939

Motion to dismiss an appeal from an order discharging relator from custody in proceedings by habeas corpus. Upon the requisition of the Governor of Maryland, the Governor of New York State granted an extradition warrant for the arrest of petitioner and he was taken into custody thereunder by the sheriff of Schoharie county. Thereupon, upon petitioner’s application, a writ of habeas corpus was granted, and after hearing he was ordered discharged from custody and it is the appeal from such order of discharge which is now before this court. The notice of appeal states that, “ The People of the State of Hew York and Jess J. Millspaw, Sheriff of the County of Schoharie, Hew York, hereby appeal to the Appellate Division of the Supreme Court,” and such notice of appeal is signed by the district attorney of Schoharie county. The motion to dismiss the appeal is based among other things upon the ground that the People and the sheriff are not parties aggrieved nor interested herein. Section 1275 of the Civil Practice Act provides that an appeal from a final order discharging a prisoner may be taken in the name of the People by the Attorney-General or by the district attorney. Motion to dismiss appeal denied, without costs. Present — Hill, P. J., Rhodes, McHamee, Crapser and Heffernan, JJ. [See post, p. 861.]