
    In the Matter of the Application of John Quinn for a Writ of Habeas Corpus.
    
      Writ of habeas corpus — discharge of a-prisoner—his custodian cannot appeal against the wishes of the district attorney — the discharge is not an estoppel or a “former adjudication,” in an action for false imprisonment.
    
    The custodian of a prisoner should not be allowed in ordinary criminal cases to maintain an appeal from an order discharging the prisoner from imprisonment, if the appeal is opposed by the prosecuting authorities representing the People.
    The mere fact that the custodian is a party to the writ, and that he is denominated the defendant in the Code of Civil Procedure, does not give him a right to appeal, where he has no interest in the subject-matter.
    A custodian would not be embarrassed by the decision upon a writ of habeas corpus, if an action for false imprisonment were subsequently brought, as the decision would not create an estoppel nor would it operate as a former adjudication.
    Motion by the district attorney to dismiss an appeal from an order of a Special Term of the Supreme Court, discharging the relator from imprisonment.
    
      Foster L. Backus, for the motion.
    
      George HoacLly, opposed.
   Cullen, J.:

It seems to be clear that at common law a writ of error did not lie to review a decision on habeas corpus. (Hurd on Habeas Corpus, 353 [hi. p. 562]. Opinion of Kent, Ch. J., in Yates v. People, 6 Johns. 337.) Still, very early in the history of this State, it was held that a prisoner might bring up for review, by a writ of error, an adverse decision on habeas corpus, despite the English rule to the contrary. (Yates v. People, supra.) We can find no case prior to the Revised Statutes where a writ of error was allowed on the application of the People. By the Revised Statutes (Yol. 2, p. 573, § 70) the Attorney-General was authorized to prosecute such a writ in the name of the People. How, by section 2059, Code of Civil Procedure, an appeal from a final order discharging a prisoner committed on a criminal accusation may be taken in the name of the People, either by the Attorney-General or by the district attorney. We do not say that this section is exclusive in all cases, and that there might not arise a case wherein an appeal cordd be prosecuted by the custodian of the discharged prisoner. But in ordinary criminal cases we think an appeal should not be maintained in opposition to the prosecuting authorities of the People. The fact that the appellant was a party to the writ and by the Code is denominated the defendant, did not give him the right to appeal if he had no interest in the subject-matter. We think he had not. The case, therefore, falls within the principle of People ex rel. Breslin v. Lawrence (107 N. Y. 607). It is to be distinguished from that of The People ex rel. Burnham v. Jones (110 N. Y. 509) where it was held that the Land Commissioners might appeal from an adverse decisión on a writ of certiorari. In that case it was held that the judgment on certiorari prevented the Land Commissioners from discharging their duties and that this fact gave them sufficient interest to justify an appeal. This language is probably broad enough in terms to coyer the case of the present appellant, but there is a vital distinction between the two cases. In the case cited the Land Commissioners were the only authorities upon which the public duty as to the matter in hand rested. But the ultimate duty of the conviction and punishment of criminals does not devolve upon peace officers, jailors or sheriffs. The conduct of public prosecutions in the administration of criminal justice is vested in prosecuting officers, the district attorney and the Attorney-G-eneral, and a prosecution should not be maintained in opposition to their action.

The appellant would not be embarrassed in a future action for false imprisonment by the decision on a habeas corpus. That decision would not bind him. In fact it is settled law that, with the exception of a narrow class of cases, such as the custody of infants, a decision on habeas corpus does not create an estoppel, even upon renewals of the writ, and never operates as a former adjudication in other litigations. (People ex rel. Lawrence v. Brady), 56 N. Y. 182.)

Motion to dismiss appeal granted.

All concurred.

Appeal dismissed.  