Opinion
January 12, 1968
MEMORANDUM BY THE COURT. Appeal from a judgment of the Supreme Court at Special Term in Clinton County which denied an application for a writ of habeas corpus for insufficiency appearing on the face of the petition. Prior to the action of the court in declining to issue a writ, relator had been transferred from the custody of the Warden of Clinton Prison to that of the Warden of Green Haven Prison. The application should have been determined solely on procedural grounds and, in consequence, we do not pass upon the sufficiency of the petition. The dismissal is sustainable on the authority of People ex rel. Lombardi v. McMann ( 28 A.D.2d 961). Judgment modified, on the law and in the exercise of discretion, so as to provide that the petition be dismissed, without prejudice to a new proceeding or other proper application in Dutchess County against the appropriate respondent, and, as so modified, affirmed, without costs. Gibson, P.J., Herlihy, Reynolds, Aulisi and Gabrielli, JJ., concur in memorandum by the court.