
    The People ex rel. Samuel Mittelman, Relator, v. The Superintendent of House of Refuge on Randall’s Island, Respondent.
    (Supreme Court, Kings Special Term,
    January, 1905.)
    New York (city) Charter — Sections 1418, 1419’—Jurisdiction of Children’s Court limited to children under sixteen — Commitment to House of Refuge — Defendant sixteen years of age convicted of felony — Habeas corpus.
    The jurisdiction of the Children’s Court of the city of New York is expressly limited by sections 1418, 1419 of the city charter to children “ under ” sixteen years of age, and children sixteen years of age may not be tried therein.
    
      While only in case of conviction for misdemeanor in the Court of General Sessions in the city and county of New York, may a male defendant sixteen years of age be committed to the House of Refuge, such a defendant, so committed upon a conviction of felony, cannot be discharged on habeas corpus, but the trial court will correct the error on application.
    Writ of habeas corpus; hearing on demurrer to a return.
    Henry J. Bloch for relator.
    Alexander T. Mason for respondent.
   Gaynor, J.:

The relator was convicted of a felony on his plea of guilty in the Court of General Sessions of the Peace of New York county. The commitment states that he is “ sixteen years of age ”. Counsel for the relator therefore argues that the said court had no jurisdiction of the case, but that it belonged to the Children’s Court of the City of New York, created and governed by sections 1418 and 1419 of the city .charter. But the said sections expressly limit that court’s jurisdiction to children “under” sixteen. But section 1418 also provides that the Children’s Court shall be held in some building separate from that in which persons “ above ” sixteen are tried; and on this slip hangs the contention that children of sixteen years must be tried in that court. It is too fine.

It is also contended that the court erred in committing the relator to the House of Refuge, for the reason that his conviction was of a felony, whereas the Penal Code (§ 701) allows of such a commitment in the case of one sixteen years old only in the case of conviction of a misdemeanor. This point is well taken, but the relator cannot be discharged for that. The court which committed him will make correction on application. Ho such request has been, made on this hearing.

The writ is dismissed.  