
    In the Matter of the Application of John Quinn for a Writ of Habeas Corpus.
    
      (Supreme Court, Appellate Division, Second Department,
    
    
      Filed Feb’ry 18, 1896.)
    
    1. Appeal—Haiíeas corpus.
    An appeal from a final order discharging a prisoner on habeas corpus cannol be maintained by the officer having- him in custody.
    
      2. Former adjudication—Habeas corpus.
    Usually 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.
    Appeal from an order discharging relator from custody.
    Foster L. Backus, for motion ; George Hoadly, opposed.
   CULLEN, J.

It seems to be clear that at common law a writ error did not lie to review a decision on habeas corpus. Hurd, Hab. Corp. 553; opinion of Kent, C. J., in Yates v. People, 6 Johns. 237. 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 Eevised Statutes where a writ of error was allowed on the application of the people. By the Eevised Statutes (volume 2, p. 573), the attorney general was authorized to prosecute such a writ in the name of the people. Now, by section 2059, Code Civ. Proa, 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 case, and that there might not arise a case wherein an appeal could not 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 bad 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; 13 St. Rep. 108. It is to be distinguished from that of People ex rel. Burnham v. Jones, 110 N. Y. 509; 18 St. Rep. 540, where it was held that the land commissioners might appeal from an adverse decision on a writ of certiorari. In that case it was held that the judgment on certiorari prevented the land commissions 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 cover the case of the present appellant, but there is a vital distinction between the two cases. In the ease 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, jailers, or sheriffs. The conduct of public prosecutions in the administration of criminal justice is vested in prosecuting officers, the district attorney, and the attorney general, 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 eases, such as the custody of infants, a decision on habeas corpus does not create an estoppel, even upon renewals of the writ, and never operated as a former adjudication in other litigations. People v. Brady, 56 N. Y. 182.

Motion to dismiss appeal granted.  