
    Supreme Court—New York County—Special Term—Part Two.
    May, 1899.
    PEOPLE ex rel. STERN v. THE NEW YORK SOCIETY FOR THE PREVENTION OF CRUELTY TO CHILDREN, AND THE FIVE POINTS HOUSE OF INDUSTRY.
    1. Criminal law—Appeal.
    The proceedings, which terminate in the commitment of the child to the Fire Points House of Industry, by final judgment of a competent tribunal of criminal jurisdiction, and now temporarily in the custody of The Hew York Society for the Prevention of Cruelty to Children, because of the breaking out of a contagious disease in the house of reception of the former, can be adequately reviewed upon an appeal,-as prescribed by section 749 of the Code of Criminal Procedure, a writ of certiorari cannot be issued to review such determination.
    2. Same.
    Such writ was not intended to enable a justice to review the evidence upon which the commitment is based..
    
      3. Same.
    While it is to be conceded that the court has power to go behind a commitment of this character in the interests of the infant committed, where a direct proceeding is instituted by petition addressed solely to the equitable discretion, the power cannot be exercised at the instance of the present applicant, in view of the form of the application.
    4. Same—Certiorari
    The rules governing applications based upon writs of certiorari andhabeas corpus are precise.
    The nature of the proceedings and the material facts are= stated in the opinion.
    Benjamin Reass, for relator.
    Delancey Nicoll, for respondents.
   GIEGERICH, J.

Upon return of writs of habeas corpus and certiorari, it is not disputed that the infant, whose custody is the subject of dispute, was committed to the charge of the respondent the Five Points House of Industry, by final judgment of a competent tribunal of criminal jurisdiction, and is now temporarily in the custody of the respondent the New York Society for the Prevention of Cruelty to Children, because of the breaking out of a contagious disease in the house of reception of the former; but the moving party contends that upon affidavits showing the inadvisability of the commitment, as a matter of fact, the general powers of the court, as the guardian of the interests of all infants, should be exercised favorably to the application. While it is to be conceded that the court has power to go behind a commitment of this character in the interests of the infant committed, where a direct proceeding is instituted by petition addressed solely to the equitable discretion (In re Knowack, 158 N. Y. 482, 58 N. E. 676), the power cannot be exercised at the instance of the present applicant, in view of the form of the application. Here the proceeding is not such as was instituted in the case cited, and the rules governing applications based upon writs of certiorari and habeascorpus are precise. As the proceedings which terminated in the commitment of the child can be adequately reviewed upon an appeal, as prescribed by .section 749 of the Code of Criminal Procedure, a writ of certiorari cannot be issued to review such determination. Code Civ. Proc. § 2122. Moreover, such writ was not intended to enable a justice to review the evidence upon which the commitment is based. People v. Sisters of St. Dominick, 34 Hun, 463, 2 N. Y. Cr. R. 528 ; People v. American Female Guardian Soc., Id. 538, note. The commitment having been made by a court of competent jurisdiction, the writs cannot be sustained (Code Civ. Proc. § 2016 ; People v. Sisters of St Dominick, supra; People v. Protestant Episcopal House of Mercy, 23 App. Div. 383, 48 N. Y. Supp. 217); and, since the return is not assailed upon jurisdictional grounds, there is nothing before the court.

Writs dismissed.  