
    The People of the State of New York ex rel. Bella Horowitz, Respondent, v. John V. Coggey, as Commissioner of Correction of the City of New York, Appellant.
    First Department,
    March 5, 1909.
    Crime—vagrancy — discharge from imprisonment — charter city of Ne,w York construed —• mandamus.
    Section 710 of the charter of the city of 'New York, requiring the commissioner of correction to examine the previous record of persons committed for vagrancy as submitted by superintendents of certain penal institutions and to make an order fixing the date upon which the prisoner is entitled to a discharge, is mandatory, and he will be compelled to make such order by mandamus.
    But, as said section further provides that no order of the commissioner for a discharge shall be made without the written indorsement of the court or magistrate hy whom the vagrant was committed, a writ" of mandamus should not-contain a provision requiring the commissioner of correction to order the superintendent of prisons to discharge the relator without the written consent of "the magistrate í
    Appeal by the defendant, John V. Ooggey, as commissioner, etc., from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the- clerk of the county of Hew York on the 19th day of' December, 1908, granting the relator’s motion for a peremptory writ of mandamus.
    
      Theodore Connoly, for the appellant.
    
      Moses H. Rothstein, for the respondent.
   Houghton, J. :

The relator was convicted by a magistrate of the city of Hew York of a violation of the provisions of section 141 of the Tenement House Act (Laws of 1901, chap. 334, as amd. by Laws of 1907, chap. 681). That section provides that a woman who shall violate, its provisions shall be deemed a vagrant, and that the procedure against her shall be the same as that provided by law for other cases of vagrancy.

By various laws persons convicted of various crimes in the several boroughs of the city of New York are directed to be committed to specified penal institutions including the workhouse on Blackwell’s island for various terms, and by section 707 of the Greater Hew York charter. (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466, as amd. by Laws of 1905, chap. 638) it is' specifically provided that all persons convicted, upon a charge of vagrancy. (except those of certain ages) in the boroughs of Manhattan and the Bronx shall be committed to such workhouse for the term of six months. Section 708 of the charter (as amd. supra) provides that where any person shall be committed to such workhouse under the provisions of section 707 (except under subdivision 2 thereof, which does not apply to the present controversy), the superintendent, warden or sheriff having charge of such institution within twenty-four hours shall ascertain from the records of the institution whether "the person'so committed has "within two years next preceding been previously committed to such institution upon conviction for public intoxication, disorderly conduct or vagrancy, and shall transmit- to the commissioner of correction-of -the city of Hew York, which office this defendant holds, by certificate, what he discovers in that regard, as well as certain other facts not material to the present inquiry. Within two days after such commitment it is provided by section 710 (as amd. supra) to be the duty of the commissioner of correction to examine such certificate and ascertain whether the person so committed has been committed to the, institution within two years next preceding for any of such offenses, and thereupon to make a written order specifying the date less than the six months’ period at which said person shall be discharged ; and where the person convicted and so sentenced has not previously been committed to the institution within such two years’ period, it is provided that the order of the commissioner shall direct that such person be discharged at the expiration of five days from the date of commitment; and where he has once before within the period been committed to such institution, the order shall direct that such person be discharged at the expiration of twenty days from the date of. commitment, as well as direct by order certain other things not material to the present controversy.

In the case of commitment for vagrancy, however the order of the commissioner is not self-operating, for the same section specifically provides that where a person shall have been committed upon a conviction of vagrancy no order of the commissioner for discharge before the period fixed by the warrant of commitment shall be made without the written consent indorsed upon such order of the court or magistrate by which or by whom such vagrant was committed.

The relator having been convicted of vagrancy in the borough of Manhattan, the magistrate sentenced her, as he was required to do, to the workhouse on Blackwell’s island for the period of six months.

By her petition the relator set forth her conviction and - commitment, and that it was her first offense and. first commitment to that institution, and that the commissioner, this defendant, had failed to make any order, although more than two days had passed, with respect to her discharge. These facts are not denied.

The law expressly commands the superintendent or warden of the workhouse on Blackwell’s island, and those in charge of the various other institutions mentioned in section 708 of the charter, within twenty-four hours of commitment of any person for public intoxication, disorderly conduct or vagrancy, to transmit by certificate to the commissioner the facts specified, and the law is equally mandatory with respect to the commissioner,, and it is his duty within two days to make an order thereon. As the case stands the defendant failed to perform a plain duty imposed upon him by statute with respect to making an order for relator’s discharge, and the granting of a peremptory writ of mandamus to compel him so to do was entirely proper.

If' the order directing the issuance of the mandamus and specifying what it should contain had no further provision there would be no question concerning it. The order, however, has a further clause reading as follows: And also commanding and directing the superintendent, warden or sheriff in charge of the said workhouse to forthwith comply with the terms and conditions of the said written order so transmitted by the said John V. Coggey, as Commissioner of Correction of the City of New York.” If this provision be interpretéd as a command to the superintendent or warden of the. workhouse to discharge relator upon the order of defendant without the written consent of the magistrate who committed her being indorsed thereon, it is erroneous.

The statute is entirely plain that where a person has been committed for vagrancy he shall not be discharged upon the order of the commissioner unless the magistrate or court before whom the conviction was had and the commitment made shall indorse thereon his consent in wilting. The superintendent or warden would violate his duty if he discharged a person so committed upon the order of the commissioner alone without the written consent of the magistrate or court. This court has held in People ex rel. Abrams v. Fox (77 App. Div. 245) that such provision of the law requiring the consent to discharge of the committing magistrate was constitutional and it is manifestly a wholesome one. The various committing magistrates of the city have to deal with an enormous number of persons guilty of such acts as to make them vagrants. The statute compels all vagrants to be sentenced for a definite period of six months. Sozne no doubt ought to serve the full period and others possibly a much less term of imprisonment. The magistrate must necessarily know more respecting these persons than the commissioner of-correction, or the wardens of the various institutions to which they are committed. The law, therefore, very wisely provides that in case of conviction and commitment for vagrancy the question of discharge before the expiration of the six months shall be submitted to the committing magistrate or court for his or its approval, which approval shall be evidenced by his written consent indorsed upon the order which the commissioner of correction is directed by law to make.

While the relator was entitled to have the defendant commissioner make an order in her behalf and such an order as the facts permitted, -she was no.t entitled to be discharged upon that order without the approval of the magistrate or court which convicted and committed her. The defendant commissioner should make his order and transmit it to the superintendent or warden of the institution, and the. relator can then, if she be able, procure the written consent to her discharge of the magistrate before whom she was convicted. If he consents she may then be released according to the provisions of the order, but if he refuses she must serve her .full term of commitment.

The order appealed from should be modified by striking out that portion above quoted, and as so modified affirmed.

Ingraham, McLaughlin, Clarke and Scott, JJ., concurred.

Order modified as directed in opinion, and as modified affirméd. Settle order on notice.  