
    The People of the State of New York ex rel. Charles M. Meeker, Appellant, v. William F. Baker, as Police Commissioner of the City of New York, Respondent.
    First Department,
    July 7, 1910.
    Habeas corpus — appeal — stay — bail.
    Where an appeal is taken in good faith from an order dismissing a writ of habeas corpus and remanding the relator to the custody of a police commissioner and directing the latter to deliver him to the agent of another State, pursuant tó a rendition warrant and it appears 'that a question is presented which justifies the appeal, a stay should be granted.
    If the oSense with which the relator is charged is bailable in this State he should be admitted to hail pending the appeal from the order.
    Scott, J., dissented, in part.
    Motion by the relator, Charles M. Meeker, for a stay of proceedings and for his admission to bail.
    
      Rollin M. Morgan, for the relator.
    
      Robert G. Taylor, for the respondent.
   Peb Cubiam :

The relator applies for a stay of proceedings and for his admission to bail pending an appeal from an order of the Special Term dismissing a writ of habeas corpus remanding the relator to the custody of the police commissioner and directing the latter to deliver him into the custody of the agent of the State of Texas, pursuant to a rendition warrant issued by the Governor of this State.

The relator contends that the indictment does not charge the commission of a crime, and that he is not a fugitive from justice within the meaning of the law so as to justify,, extradition. Without passing upon the merits, we think a question is presented which fairly justifies the appeal, and it appears to be taken in good faith. The sole question is, then, whether a stay should be granted and whether the relator should be admitted to bail. Without a stay, the appeal will be ineffectual. While the decisions in all jurisdictions do not appear to be uniform, they have usually turned upon the construction of the Constitution and laws of the State in which the question arose. It appears from the statement of Tacts in Roberts v. Reilly (116 U. S. 80) that the relator in that case was admitted to bail by the District Court of the United States for the Southern District of Georgia, and it was held by the court that the provisions of the Revised Statutes of the United States relating to appeals in cases of habeas corpus were applicable. In People ex rel. Corkran, v. Hyatt (172 N. Y. 176) it was held that the question of fact whether the prisoner was a fugitive from justice could be inquired into on habeas corpus proceedings and. that such proceedings were controlled by the Constitution and laws of the State of Rew York. Sections .2015 et seq. of the Code of Civil Procedure are, therefore, applicable. Section 2058 provides when an appeal may be taken. Section 2060 provides : “ Where a prisoner, who stands charged, upon a criminal accusation, with a bailable offence, has perfected, or intends to take, an appeal from a final order dismissing the proceedings, remanding him, or otherwise refusing to discharge him,, made as ■ prescribed in this article, the court or judge, upon his application, either before or after the final order, must, ripon such notice to the district attorney as the court or judge thinks proper, make an order fixing the sum in which the applicant shall be admitted to bail, pending the appeal; and thereupon^ when his appeal is perfected, he must be admitted to bail accordingly.”

Ro question is made but that the offense charged is bailable. If the section authorizing an appeal is applicable, the one requiring that the relator be admitted to bail must ¿quaily be applicable, and upon that point xve consider the decision in People ex rel. Corkram v. Hyatt (supra) controlling.

The motion for a stay is granted, and bail is fixed in the sum of $10,000.

Present — Ingraham, P. J., Laughlin, Clarke, Scott and Miller, JJ.

Mr. Justice Scott, while concurring in the granting of the stay, does not concur in admitting the relator to bail.

Motion for stay granted; bail fixed at $10,000. Settle order on notice.  