246 N.Y. 258, People ex rel. Sabatino v. Jennings

Citation246 N.Y. 258
Party NameTHE PEOPLE OF THE STATE OF NEW YORK ex rel. BENNY SABATINO, Respondent, v. EDGAR S. JENNINGS, as Warden of Auburn Prison, Appellant.
Case DateOctober 28, 1927
CourtNew York Court of Appeals

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246 N.Y. 258



EDGAR S. JENNINGS, as Warden of Auburn Prison, Appellant.

New York Court of Appeal

October 28, 1927

Submitted October 24, 1927.


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Benny Sabatino, in person for motion.

Albert Ottinger, Attorney-General (Henry C. Henderson of counsel), opposed.


The relator is a prisoner in the State Prison at Auburn. More than three years ago, in March, 1924, upon his petition for a writ of habeas corpus, the Supreme Court adjudged that his term had expired, and ordered his discharge. His release being withheld, he sued out another writ in January, 1927, after intermediate applications had been made and denied. Upon the return thereto, the Supreme Court dismissed the petition and remanded him to prison, holding that the first order had been nullified by force of later events. The relator appealed to the Appellate Division of the Supreme Court for the fourth department. In June, 1927, that court reversed the order dismissing the proceeding, sustained the writ and directed that the relator be forthwith discharged from custody.

An appeal from that order is now pending in this court. Four months have elapsed, but the appeal has not yet been brought on for hearing. In the meanwhile the warden has kept the relator in prison and has disregarded the order for an immediate discharge. Without the aid of counsel the relator now asks that he be released upon his own recognizance until the appeal shall be determined.

Upon the entry and service of the order of the Appellate Division, the relator should have been discharged from custody in accordance with its mandate. The warden has relied upon section 570 of the Civil Practice Act, which provides that "upon an appeal taken by the People of the State or by a state officer or board of state officers, or a board of supervisors of a county, the service of the notice of appeal perfects the appeal and stays the execution of the judgment or order appealed from, without an undertaking or other security. " That section has no

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application to an appeal by a State officer from an order directing the unconditional discharge of a prisoner upon a writ of habeas corpus. The pertinent section in such a situation is section 1269, which provides that "a prisoner who has been discharged by a final order made upon a writ of habeas corpus or certiorari * * *...

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