
    In the Matter of Frank Erickson, Appellant, against Albert Williams, as Commissioner of Correction, et al., Respondents.
    First Department,
    February 15, 1951.
    
      Harold H. Corbin for appellant.
    
      Saul Mosktoff of counsel (John P. McGrath, Corporation Counsel), for Albert Williams, as Commissioner of Correction, and Thomas McDonnell, as Warden of the New York City Penitentiary at Bikers Island, respondents.
    
      David I. Shivite of counsel (Rudolph Halley, chief counsel),for Special Committee of the Senate of the United States.
   Per Curiam.

The Beport of the Joint Legislative Committee on the Simplification of Civil Practice ([1919], p. 254) shows that the present section 415 et seq. of the Civil Practice Act and section 10-c of the Code of Criminal Procedure (as amd. by L. 1950, ch. 766) were recommended so as to substitute proceeding by means of an order for the production of a prisoner as a witness for the former writ of habeas corpus ad testificandum. Giving the language of the sections a reasonable construction in the light of their history and considering the objects sought to be accomplished, we find that the order appealed from was warranted. A hearing conducted by a Special Investigating Committee of the United States Senate would appear to be a ‘ ‘ special proceeding ”ora“ proceeding pending before any officer or body ” within the meaning of these sections. Inasmuch as the order appealed from required the production of the prisoner within this State, we need not consider whether the statutes would permit a direction to produce him outside of the State, nor need we consider whether there be inherent power in the court to grant the order appealed from.

The order appealed from should be affirmed.

Heffernan, J.

(dissenting). A committee of the United States Senate is desirous of examining as a witness one Erickson. The latter is a prisoner under sentence by a court of competent jurisdiction in a penal institution of this State and is within the dominion and exclusive jurisdiction of the State.

An order has been made by a Justice of the Supreme Court directing that Erickson be produced before the committee for interrogation. The prisoner is appealing from the order.

The committee conducting the investigation is not a court and not a body or officer with authority to exercise criminal jurisdiction and hence the provisions of subdivision 2 of section 10-c of the Code of Criminal Procedure have no application. Neither is this proposed investigation a special proceeding within the meaning of sections 415 and 416 of the Civil Practice Act.

There is no authority for the making of the order appealed from and, consequently, it is a nullity and should be reversed and the application for an order directing the production of appellant for examination should be denied.

Peoic, P. J., Cohn, Callahan and Van Yoorhis, JJ., concur in Per Curiam opinion; Heffernan, J., dissents and votes to reverse, in opinion.

Order affirmed.  