
    SUPREME COURT—APP. DIVISION—FIRST DEPT.,
    March, 1912.
    PEOPLE ex rel. HERTZ v. WARDEN.
    (149 App. Div. 939.)
    Information*—Habeas Corpus.!
    Where a defendant sues out a writ of habeas corpus on the ground that the preliminary complaint before a magistrate is insufficient, and the justice before whom the writ is returnable reserves decision and admits relator to bail, and subsequently she is arrested on another information, to which she pleads, held, that the subsequent commitment under the second information superseded the original warrant based on the alleged defective information, that the question is therefore purely academic, and the appeal from the denial of the writ of habeas corpus must be dismissed.
    Motion to dismiss an appeal.
    * See Note 11-376.
    f See Notes 15-152, 23-55.
   Pee Curiam:

The relator was arraigned before a city magistrate charged with the crime of maintaining a disorderly house. The examination of the relator under this charge was at her request adjourned to February 21, 1912, and she was admitted to bail in the sum of $2,500. Thereafter, on February twenty-first, the relator was surrendered by her surety, and was in the custody of the warden of the city prison. Whereupon she sued out a writ of habeas corpus before a justice of the Supreme Court, claiming her discharge upon the ground that the complaint upon which she was arraigned before the magistrate did not state facts sufficient to connect her with the crime charged. The justice of the Supreme Court, before whom the habeas corpus proceeding was had, reserved decision and admitted the relator to bail. Subsequently the writ was dismissed and the relator remanded. On February twenty-ninth an information was filed by the district attorney in the Court of Special Sessions, charging the relator with the crime of maintaining a disorderly house, to which information the relator interposed a plea of not guilty, and the issue raised by that plea has not yet been disposed of. Thus the relator is now held under the commitment of the magistrate dated February twenty-eighth, the information filed by the district attorney in the Court of Special Sessions and the plea thereto. It thus becomes entirely immaterial whether the original charge was sufficient to justify the arrest of the relator under the warrant of the magistrate. The case has been removed from that jurisdiction to the Court of Special Sessions ; and if this court should hold that the original arraignment before the magistrate was based upon an insufficient charge, the relator would not be entitled to be discharged, as the subsequent commitment by the magistrate and the arraignment and plea before the Court of 'Sessions superseded the original warrant of the magistrate. The question, therefore, becomes purely academic and the motion to dismiss the appeal must be granted.

Present: Ingrahak, P. J., McLaughlin, Clarke, Scott and Dowling, JJ.

Appeal dismissed.  