261 A.D. 1049 | N.Y. App. Div. | 1941
Case held and decision reserved and matter remanded to the Special Term of the Supreme Court, Erie county, to proceed in accordance with the following memorandum: The record does not contain any requisition demanding that the Governor of the State of New York surrender relator to the State of Pennsylvania. A proceeding for the rendition of relator could not be commenced except upon such requisition of the Governor of the State of Pennsylvania. (U. S. Const, art. 4, § 2; IT. S. Code, tit. 18, § 662; Matter of Adutt, 55 Fed. 376, 379; Solomon’s Case, 1 Abb. Pr. [N. S.] 347 and 348.) In this proceeding the court may examine into and pass upon the sufficiency of the papers upon which the Governor acted in issuing his warrant for the arrest of relator. (People ex rel. Higley v. Millspaw, 281 N. Y. 441, 445.) The relator claims that a requisition for his surrender to the State of Pennsylvania was not made upon the Governor of this State by the Governor of the State of Pennsylvania. The appellants claim that such requisition was made. Testimony as to this fact was not taken in the court below and we believe that such fact should be determined before we pass upon this appeal. Therefore, the matter should be remanded to the Special Term of the Supreme Court to be held in and for the county of Erie, to determine whether the papers upon which the Governor of this State acted in issuing his warrant for the arrest of relator, included a requisition of the Governor of the State of Pennsylvania, and, if necessary, take evidence with respect thereto and report the evidence and its findings to this court. All concur. (The order sustains a writ of habeas corpus and dismisses [discharges] relator from custody.) Present — Crosby, P. J., Cunningham, Taylor, Dowling and Harris, JJ. [174 Mise. 981.]