Opinion
June 30, 1941.
Relator appeals from an order dismissing a writ of habeas corpus and remanding his brother, a prisoner sentenced to a city penitentiary, to the custody of the superintendent of a State hospital for the criminal insane. Order affirmed, without costs. Relator contends that the prisoner's transfer to the hospital was unlawful because the order of transfer purported to adjudge the prisoner insane without notice and without a hearing. In that respect the order was a nullity. Under section 408 Correct. of the Correction Law (Cons. Laws, chap. 43), pursuant to which the transfer was made, the justice who signed the order was without power to pass upon the competency of the prisoner, who is now confined in the hospital under his sentence to the penitentiary. ( Trust Co. of America v. State Safe Deposit Co., 109 App. Div. 665, 668, 669; People ex rel. Stephani v. North, 91 Misc. 616; Matter of Stephani, 250 App. Div. 253, 254, 257.) Dismissal of the writ was proper for the reason that the petition demanded the prisoner's release from the hospital, in disregard of the fact that the term of imprisonment will not expire until December of 1942. Lazansky, P.J., Hagarty, Carswell, Taylor and Close, JJ., concur.