Opinion
October 9, 1936.
Present — Sears, P.J., Edgcomb, Thompson, Crosby and Lewis, JJ.
Order affirmed, without costs. Memorandum: We affirm this order because no ground appears why an order of mandamus or habeas corpus should issue against the warden of Auburn Prison. The return of the warden shows that the relator is being held under a valid commitment upon a conviction of forgery, the sentence being for ten years' imprisonment, which has not yet expired. While there is question whether on the facts stated by the relator there was a violation of his conditional discharge (Correction Law, § 243; Report of the Attorney-General for 1909, p. 804), inasmuch as the crime for which he was convicted and sentenced to ten years' imprisonment was not committed after his discharge, and also whether the ten-year sentence did not begin to run immediately when he was returned to prison after the imposition of the ten-year sentence, whether or not his previous sentence had been completely served ( People v. Ingber, 248 N.Y. 302; Kirkman v. McClaughry, 152 Fed. 255; Zerbst v. Lyman, 255 id. 609; Penal Law, § 2190; People ex rel. Spillman v. Wilson, 236 App. Div. 201), these matters, however important in themselves, are not before us on this appeal. The respondent warden has no present duty in respect to these matters. The chairman of the Board of Parole is apparently not a party to this proceeding. All concur. (The order denies an application for a mandamus.)