
    The People of the State of New York on the Relation of Edward Swann, as District Attorney of the County of New York, and Alfred E. Smith, as Sheriff of the County of New York, Petitioners, v. Thomas Mott Osborne, as Agent and Warden of Sing Sing Prison, at Ossining, New York, Respondent.
    (Supreme Court, Rockland Special Term,
    August, 1916.)
    Penal Law, § 2193 — provisions of, in passing sentence — determination as to compensation — Laws 1916, chap. 358.
    Under section 2193 of the Penal Law which provides that the court, in passing sentence, must assume that the convict will earn the statutory commutation for good behavior, only the “ commutation ” which may be earned by good behavior is to be taken into account in fixing the termination of a sentence to a state prison, and the “ compensation ” which may be earned under chapter 358 of the Laws of 1916, not provided for by said section 2193 of the Penal Law, is not to be reckoned in fixing the date for the expiration of a sentence, as the court cannot determine what “ compensation ” may be earned by or allowed to the convict.
    Mandamus to compel the warden to receive a prisoner.
    
      Emmet J. Murphy, assistant district attorney of New York county, for petitioner.
    Egburt E. Woodbury, attorney-general, opposed.
   Tompkins, J..

I think the interpretation given to section 2193 of the Penal Law, and chapter 358 of the Laws of 1916, by Judge Delehanty of the Court of General Sessions, New York county, is correct, and that only the “ commutation ” which may be earned by good behavior is to be taken into account in fixing the termination of a sentence to a state prison, and that the compensation ” which may be earned under • the new law of 1916 is not to be reckoned in fixing the date for the expiration of a sentence.

The “ commutation ” as defined by the statute is for a definite period, and the court in passing sentence must assume that the convict will earn that6 ‘ commutation;” and, inasmuch as it is definitely fixed by the law itself, the court in passing sentence may fix a term of imprisonment which, taking into account the “ commutation,” will expire during the period from April first to October first.

The compensation provided by the law of 1916 may be for a period ‘ ‘ not exceeding two and one-half days for each thirty day period.” Inferentially, it may be for less than two and one-half days, for each thirty-day period, depending upon some general or special rule to be made by the present authorities.

The court cannot determine, in passing sentence, what ‘ compensation ” may be earned by or allowed to the convict, and therefore it is impossible for the court to consider the matter of “ compensation ” in fixing the expiration of a sentence.

Section 2193 of the Penal Law only provides that the court shall assume that the convict will earn the commutation fixed by the statute for “ good behavior,” and makes no provision for taking into account the matter of compensation ” which may be allowed for “ efficient and willing performance of duties assigned to him or her.” If it had been the intention of the legislature of 1916 to add that provision to section 2193 of the Penal Law, it would have done so; and it is not for the court by judicial action to extend the scope of its provisions beyond their obvious meaning.

' I think the sentence imposed by the Court of General Sessions of New York county in this case was proper, and that the warden and agent of Sing Sing prison must receive the convict under said sentence.

Ordered accordingly.  