
    The People ex rel. Julia Stern, Relator, v. The New York Society for the Prevention of Cruelty to Children, and the Five Points House of Industry, Respondents.
    (Supreme Court, New York Special Term,
    May, 1899.)
    Infants — Commitment to a house of industry, how reviewed — Code Grim. Tro., § 749.
    While the court has power, in a direct proceeding instituted by petition and in the interests of an infant, to go behind its commitment to the custody of a House of Industry, the court cannot review a commitment, made by a competent criminal tribunal, upon returns to writs of habeas corpus and certiorari, the remedy being by an appeal taken under section 749 of the Code of Criminal Procedure.
    The nature of the proceedings and the material facts are stated in the opinion.
    Benjamin Reass, for relator.
    De Lancey Nicoll, for respondents.
   Giegerich, J.

Upon return of writs of habeas corpus and cértiorári, it is not disputed that the infant, whose custody is the subject of- dispute, was committed to the charge of the respondent, the Five-Points House of Industry, by final judgment of a competent tribunal of criminal jurisdiction, and is now temporarily in the-custody of the respondent, The Hew York Society for, the Prevention of Cruelty to Children, because of the breaking out of a . contagious disease in the house of reception of the former; but the moving party, contends that upon affidavits, showing the inadvisability of the commitment, as a matter of fact, the general powers of the court, as the "guardian of the interests of all infants, should be exercised favorably to the application;

While it is to be conceded that the court has power to go behind a commitment of this character in the interests of the infant committed, where a direct proceeding is instituted by petition addressed solely to the equitable discretion (Matter of Knowack, 158 N. Y. 482); the power cannot be exercised at the instance of the present applicant, in view of the form of the application.

Here, the proceeding is not such as was instituted in the case cited, and the rules governing applications based upon writs-of certiorari and habeas corpus are. precise. As the proceedings, which terminated 'in the commitment of the child, can be adequately reviewed upon an appeal, as prescribed by section 149* of the Code of Criminal Procedure, a writ of certiorari cannot be issued to review such determination. ■ Code Civ. Pro., § 2122. Moreover, such writ was not intended to enable a justice to review the evidence upon which the commitment is based. People ex rel. Perkerson v. Sisters of St. Dominick, 34 Hun, 463; 2 N. Y. Crim Rep. 528; People ex rel. Eck v. American Female Guardian Society, 2 N. Y. Crim. 538, n.

The commitment having been made by -a . court of competent jurisdiction, the writs cannot be sustained (Code Civ. Pro., § 2016; People ex rel. Perkerson v. Sisters of St. Dominick, supra; People ex rel. Lazarus v. House of Mercy,-23 App. Div. 383), and, since tiie return is not assailed upon jurisdictional grounds, there is noth-' ing before the court., . • '

Writs dismissed.  