
    The People of the State of New York ex rel. James Saporito, Respondent, v. The Warden of the Penitentiary of the City of New York. The People of the State of New York, Appellant.
    First Department,
    March 8, 1935.
    
      
      Sol Boneparth of counsel [Herman J. Fliederblum with him on the brief; Samuel J. Foley, District Attorney], for the appellant.
    No appearance for the respondent.
   Per Curiam.

No notice having been given to the district attorney of Bronx county, from which the relator was committed, the court was without power to sustain the writ and discharge the prisoner. Failure to give such notice was not an irregularity, but a jurisdictional defect. (Civ. Prac. Act, § 1258, subd. 4; People ex rel. Asmus v. Melody, 91 App. Div. 569; Matter of Leggat, 162 N. Y. 437; People ex rel. Gamaldi v. Warden Kings County Jail, 160 App. Div. 480; Matter of Mellor v. Hinkley, 201 id. 619; People v. Carter, 48 Hun, 165.)

The order denying the motion to vacate the order of August 15, 1934, sustaining the writ and discharging the prisoner, should be reversed, said order vacated, and the prisoner remanded, without prejudice to an application for a further writ.

Present ■ — Martin, P. J., Merrell, O’Malley, Townley and Untebmyer, JJ.

Order reversed, motion granted and the relator remanded, without prejudice to an application for a further writ.  