268 A.D. 811 | N.Y. App. Div. | 1944
Appeal from an order of the Clinton County Court entered January 26, 1944, which denied a motion made in a habeas corpus proceeding. Relator by habeas corpus seeks his release from Dannemora State Hospital. While confined in Auburn State Prison he was on August 13, 1929, transferred to Dannemora State Hospital where he has since been detained. His prison term expired about January 3, 1943. On January 11, 1943, he was adjudged insane and committed to the Dannemora State Hospital. On the hearing on the writ relator moved to vacate the order of commitment of January 11, 1943. This motion was denied without prejudice to relator to continue the proceeding then pending to determine his present mental condition. Under section 1274 of the Civil Practice Act an appeal may be taken in a habeas corpus proceeding only from an order refusing to grant a writ or from a final order, made upon the return of the writ, to discharge or remand the prisoner or to dismiss the proceeding. The order here attempted to be appealed is not such an order and the appeal must be dismissed. Appeal dismissed, without costs. All concur, except Hill, P. J., who dissents upon the ground the habeas corpus has been dismissed and relator should be discharged from custody under the authority of People ex rel. Morriale v. Branham (291 N. Y. 312).
