
    The People of the State of New York ex rel. Clyde Tolbert, Appellant, against Robert E. Murphy, as Warden of Auburn Prison, Respondent.
   Order unanimously reversed and proceeding remitted to Cayuga County, Special Term, Supreme Court for further proceedings in accordance with memorandum. Memorandum: Upon the concession of the Attorney-General that a hearing is necessary and proper to determine whether or not the seventh count of the indictment charging assault, second degree, was merged in the first count of the indictment charging rape, first degree, so as to prevent the imposition of consecutive prison terms, the proceeding should be remanded for such hearing. The failure to comply with section 1258 of the Civil Practice Act should be remedied prior to the hearing and the required notice given to the District Attorney of Bronx County. (Cf. People ex rel. Sams v. Murphy, 8 A D 2d 460, 462.) (Appeal from an order of Cayuga Special Term dismissing a writ of habeas corpus and remanding relator to the custody of the Warden of Auburn Prison.) Present — Bastow, J. P., Goldman, Halpern, McClusky and Henry, JJ.  