Opinion
April 1, 1946.
Appeal from an order sustaining a writ of habeas corpus and transferring respondent to Westfield State Farm. Order reversed on the law, without costs, the writ dismissed and respondent remanded to the custody of the Superintendent of Matteawan State Hospital. Respondent, sentenced in 1944 to Westfield State Farm for a three-year indefinite term for the crime of grand larceny in the second degree, was subsequently transferred to Matteawan State Hospital in the manner provided by statute. She thereafter obtained a writ of habeas corpus, the petition therefor alleging that she was sane, and that she would have been eligible for consideration for parole were it not for the fact that she was confined in that hospital. In our opinion, habeas corpus is not available as a remedy under the facts disclosed by this record, where the term of respondent's sentence has not expired. ( People ex rel. Dambrosio v. McNeill, 263 App. Div. 748, affd. 288 N.Y. 717; People ex rel. Sullinger v. Shaw, 269 App. Div. 918. ) The case of People ex rel. Marshall v. Webster ( 266 App. Div. 637) is distinguishable. Lewis, P.J., Hagarty, Carswell, Johnston and Adel, JJ., concur.