
    Fourth Department,
    October, 1933.
    The People of the State of New York ex rel. Clemence Buchanan, Appellant, v. Joseph H. Brophy, as Warden of Auburn State Prison, Respondent.
   Order affirmed. The ten-year sentence for the crime of burglary, third degree, is a legal sentence and the term of the sentence has not yet expired. The relator is properly held in custody under the terms of this sentence. We are, therefore, not called upon to, and do not, pass upon the legality of the sentence of ten years for grand larceny, second degree (commuted to five years by the Governor), because the relator is not now in custody by reason of such sentence. We, therefore, express no opinion as to the legality of that sentence. (Civ. Prac. Act, § 1252, subd. 2.) All concur; Edgcomb, J., not sitting.  