Appeal by petitioner from an order of the Clinton County Court, entered in the office of the clerk of that county on June 2, 1937, dismissing a writ of habeas corpus and remaining petitioner to Clinton Prison at Dannemora. Appellant was sentenced by the County Court of Steuben county on December 16, 1932, for assault in the second degree, as a fourth offender, to a term of twenty-five years to life. He bad been charged with the following previous felony convictions: January 28, 1925, grand larceny in the first degree, Monroe County Court, sentenced to Monroe County Penitentiary for one year. February 5, 1926, criminally receiving stolen property, Monroe County Court, sentenced to Auburn Prison for five years. May 2, 1932, forgery in the second degree, Cattaraugus County Court, sentenced to Auburn Prison for ten years and the execution of such sentence suspended. The last alleged conviction was not a previous conviction *828as a basis for sentence as a fourth offender within the intent of section 1942 of the Penal Law. (People ex rel. Marcley v. Lawes, 254 N.Y. 249" court="NY" date_filed="1930-07-08" href="https://app.midpage.ai/document/people-ex-rel-marcley-v-lawes-3605093?utm_source=webapp" opinion_id="3605093">254 N. Y. 249; People ex rel. Jobissy v. Murphy, 244 A.D. 834" court="N.Y. App. Div." date_filed="1935-05-15" href="https://app.midpage.ai/document/people-ex-rel-jobissy-v-murphy-5340302?utm_source=webapp" opinion_id="5340302">244 App. Div. 834; affd., 268 N.Y. 695" court="NY" date_filed="1935-10-22" href="https://app.midpage.ai/document/people-ex-rel-jobissy-v-murphy-3628890?utm_source=webapp" opinion_id="3628890">268 N. Y. 695.) Order modified by remanding and committing appellant to the custody of the sheriff of Steuben county for the purpose of being taken before the County Court of Steuben county for resentence, and setting aside the sentence heretofore imposed, instead of to the warden of Clinton Prison (Civ. Prac. Act, § 1256), and as so modified unanimously affirmed, with fifty dollars costs and disbursements to the appellant against the respondent. Hill, P. J., MeNamee, Crapser, Bliss and Heffeman, JJ., concur.