Stumpf v. Craig (1913), 79 Misc. 98, 140 N. Y. Supp. 652, 29 N. Y. Cr. 29.

Where the return to a writ of habeas corpus sued out by one held under a warrant for extradition is traversed by a denial of the identity of the relator with the person named in the indictment on the ground that the relator was not in the demanding State at the time of the commission of the crime, and therefore, was not a fugitive from justice, and the preponderance of evidence is on the side of the relator, the writ will be sustained and the relator released. People ex rel. Fuchs v. Police Commissioner (1914), 83 Misc. 643, 146 N. Y. Supp. 781.

Where the warrant of commitment is the sole authority for the confinement which is being inquired into in a habeas corpus proceeding, and where it specifies as the crime with which the accused is charged an offense which is not supported by the evidence, and wholly fails to specify the crime which the evidence does tend to establish, it is not simply "irregular" and may not be made the basis for holding the accused on account of the latter offense, under the provisions of section 2035 of the Code of Civil Procedure. People ex rel. Howey v. Warden, etc. (1913), 207 N. Y. 354.

ARTICLE VI.

MISCELLANEOUS MATTERS OF PRACTICE.

(Fiero, Spec. Pro., 3rd Ed., pp. 1275-1277.)

Where a writ of habeas corpus awarding custody of a child of tender years to her father is granted solely upon affidavits so conflicting that it is impossible to determine whether the father is a proper person to have the custody, or whether it is to the best interest of the infant, the order will be reversed and the matter sent to a referee to take proof and report to the Special Term with an opinion. Matter of Meyer (1911), 146 App. Div. 626, 131 N. Y. Supp. 380.

ARTICLE VII.

PROCEEDINGS WHEN PRISONER DISCHARGED AND EFFECT OF

DISCHARGE.

(Fiero, Spec. Pro., 3rd Ed., pp. 1277-1278.)

The words "for the same cause " in section 2050 of the Code of Civil Procedure mean an imprisonment on the same informa

tion and not imprisonment under a new information followed by a lawful warrant, the sufficiency of both of which stands unchallenged. Sutton v. Butler (1911), 74 Misc. 251, 133 N. Y. Supp. 936, affd., 151 App. Div. 894, 135 N. Y. Supp. 1145.

An order in habeas corpus proceedings discharging a person committed to a State hospital for the insane, and directing that it may be vacated and the person recommitted without a further hearing in case he violates conditions therein, prohibiting him from going into the State of Massachusetts, to which he consented, is erroneous and illegal. People ex rel. Savage v. Hutchins

(1917), 219 N. Y. 200.

ARTICLE IX.

WHEN WARRANT OF ATTACHMENT ISSUES.

(Fiero, Spec. Pro., 3rd Ed., pp. 1280-1281.)

An ex parte order adjudging a defendant guilty of criminal contempt in wilfully disobeying a writ of habeas corpus is unauthorized by section 2028 of the Code of Civil Procedure. People ex rel. Bishop v. Bishop (1918), 184 App. Div. 227, 171 N. Y. Supp. 562.

ARTICLE X.

CERTIORARI TO INQUIRE INTO CAUSE OF DETENTION.

(Fiero, Spec. Pro., 3rd Ed., pp. 1281-1285.)

CODE CIV. PRO., § 2043. When discharge to be granted; when proceedings to

cease.

Code Civ. Pro., § 2043. When discharge to be granted; when proceedings to

cease.

If it appears, that the prisoner is unlawfully imprisoned or restrained in his liberty, the court or judge must make a final order, discharging him forthwith. If it appears that he is lawfully imprisoned or detained, and is not entitled to be bailed, the court or judge must make a final order, dismissing the proceedings. A final order made in a proceeding brought on behalf of a person imprisoned or detained in any of the state hospitals mentioned in section forty of the insanity law or in the Matteawan State hospital or in the Dannemora hospital for insane convicts, shall be conclusive evidence, upon a hearing of any subsequent proceeding involving the detention of the same person, of all the facts determined by the court, unless such final order shall otherwise specify.

Amended by L. 1913, ch. 544.

ARTICLE XI.
APPEAL.

(Fiero, Spec. Pro., 3rd Ed., pp. 1285-1290.)

The first sentence of section 2058 of the Code of Civil Procedure gives the people the unqualified right to appeal from a final order discharging the prisoner. The succeeding sentence is permissive and was intended to authorize an appeal before bail is given, where the discharge, instead of being absolute, is conditional, and to provide that in such case an appeal by the people should not stay the discharge of the prisoner upon giving bail. People ex rel. Hubert v. Kaiser (1912), 206 N. Y. 46. This section is not invalid on the theory that it suspends the privilege of the writ of habeas corpus contrary to the provisions of the State and Federal constitutions. People ex rel. Hubert v. Kaiser (1912), 150 App. Div. 541, 135 N. Y. Supp. 274, affd., 206 N. Y.

46.

An appeal from an order discharging the relator in habeas corpus proceedings must be taken in the name of the people or it will be dismissed. People v. Gittens (1913), 209 N. Y. 527.

A prisoner held under conviction of a court of competent jurisdiction and is serving out his sentence under such judgment, does not stand charged with any offense under sections 2060 or 2061 of the Code of Civil Procedure, and the court has no power to admit the prisoner to bail pending an appeal. People ex rel. Hubert v. Kaiser (1912), 150 App. Div. 915, 135 N. Y. Supp. 694.

HABITUAL DRUNKARD, SALE OF REAL ESTATE OF.
See INFANT, SALE OF REAL ESTATE OF.

HABITUAL DRUNKARD, APPOINTMENT OF COMMITTEE OF. See APPOINTMENT OF COMMITTEE FOR LUNATIC, ETC.

IDIOT, SALE OF REAL ESTATE OF.
See INFANT, SALE OF REAL ESTATE OF.

IDIOT, APPOINTMENT OF COMMITTEE OF.
See COMMITTEE OF LUNATIC, ETC.

INDIVIDUAL, CHANGE OF NAME OF.

See NAME OF INDIVIDUAL, PROCEEDINGS TO CHANGE.

INFANT, LUNATIC, IDIOT OR HABITUAL DRUNK

ARD, SALE OF REAL ESTATE OF.

(Fiero, Spec. Pro., 3rd Ed., pp. 1317-1347.)

Art. II. Application to dispose of real property and petition.
III. Appointing of guardian, and bond.

VI. Proceeds of sale, how distributed.

ARTICLE II.

APPLICATION TO DISPOSE OF REAL PROPERTY AND PETITION. (Fiero, Spec. Pro., 3rd Ed., pp. 1321-1330.)

SUBD. 2. Petition, by whom made, and contents.

Subd. 2. Petition, by Whom Made, and Contents.

(Fiero, Spec. Pro., 3rd Ed., pp. 1327-1330.)

A petition for the sale of property of an infant, which gives only the assessed value and is silent as to the real or market value, is insufficient. Title Guarantee & Trust Co. v. Rudershausen (1917), 164 N. Y. Supp. 15.

A petition for leave to sell the undivided interest of an incompetent person in land to avoid an action of partition on the part of cotenants, or for the dower of a widow therein, is not defective. because of failure to state the particulars and value of the real and personal property, and the amount of the income of the incompetent person, the disposition made of her personal property and an account of the debts or demands, if any, existing against her estate. When enough is shown in the petition to answer the statutory requirements, the adequacy or inadequacy of the reasons for the sale must be determined by the court that hears the application. Harrison v. Higgins (1916), 218 N. Y. 556.

ARTICLE III.

APPOINTING OF GUARDIAN, AND BOND.

(Fiero, Spec. Pro., 3rd Ed., pp. 1330-1333.)

CODE CIV. PRO., § 2351. Bond of committee of lunatic, etc.

Code Civ. Pro., § 2351. Bond of committee of lunatic, etc.

An application to sell, mortgage, release, or lease real property, or an interest in real property, of a lunatic,idiot or habitual drunkard, cannot be

granted, unless a committee of his property has been appointed. Upon such an application, if it is made by the committee, the court must make an order, directing him to file with the clerk, a bond, with either individual or corporate surety, approved by the court as to form, amount and sufficiency of surety, conditioned for the faithful discharge of his trust; for the paying over and investing of, and accounting for, all moneys received by him in the special proceeding, according to the direction of any court having authority to give directions in the premises; and for the observance of the directions of the court, in relation to the trust. If the application is made by any other person, an order must be made thereupon, requiring the committee to show cause why he should not file such a bond. If, after hearing the committee, the court is of the opinion, that there is a probable cause for granting the application, it may make an order, requiring the committee to file such a bond; or, if the committee so elects, or fails to file the bond as directed in the order, it may appoint a suitable person to be the special guardian of the incompetent person, with respect to the proceedings, who must thereupon file such a bond. Where an application is made to release an inchoate right of dower, application must be made by the husband of the lunatic, idiot or habitual drunkard and may be made before or after a committee has been appointed, except that application may be made by the committee of the property of the lunatic, idiot, or habitual drunkard in any case where, at the time of the application, the property to which the inchoate right of dower attaches has already been sold by the husband and the wife has not joined in the conveyance or otherwise released her inchoate right of dower. When the application is made by the husband, the court may appoint him special guardian, and he must file a bond as herein provided.

Amended by L. 1915, ch. 241.

The court may, when making an order of reference, also approve the guardian's bond, where the order appointing the special guardian and fixing his bond also appointed the referee. Title Guarantee & Trust Co. v. Rudershausen (1917), 164 N. Y. Supp.

15.

Where a special guardian furnished a bond to infant petitioners, whose individual shares were less than $1,000 each, executed by a surety company in the sum of $12,000, as authorized and approved by the court, for which he paid the sum of $46 as a premium, it was held, that he should be allowed to deduct and retain that amount under the express authority of section 3320 of the Code of Civil Procedure, which must be held to be paramount to Rule 58 of the General Rules of Practice. Matter of Molinari (1913), 82 Misc. 663, 144 N. Y. Supp. 217.