
    The People of the State of New York ex rel. Harry S. Travis, [on Behalf of Donald P. Ackley], Appellant, against Earl Daniels, as Sheriff of Broome County, Respondent.
    Third Department,
    September 21, 1945.
    
      Harry 8. Travis, attorney for' appellant.
    
      Robert 0. Brink, District Attorney (Samuel W. Bernstein, Assista,nt District Attorney, with him on the brief), for respondent.
   Per Curiam.

Belator has appealed from an order of the Broome Special Term of the Supreme Court (Deyo, J.), dismissing a writ of habeas corpus issued on behalf of Donald P. Ackley. In March, 1945, Ackley, an undertaker, was indicted by a grand jury in Broome County on a charge of violating section 2211 of the Penal Law. The indictment contained four counts each charging defendant with failing to bury or incinerate the bodies of four deceased persons after he had assumed the obligation to do so as an undertaker. The first count charged defendant with failure to bury a dead body on July 5, 1944; the second with a like failure to bury a body on March 29, 1944; the third with a like failure to bury a body on March 23, 1944; the fourth with a like failure to bury a body on March 11, 1944. The indictment alleged the four bodies had not been buried or incinerated on January 1, 1945.

Defendant demurred to the indictment on the ground that section 2211 of the Penal Law has no application to an undertaker. The demurrer was later withdrawn and relator thereupon applied for a writ of habeas corpus'for the discharge of the defendant. The Special Term dismissed the writ without considering the merits of the question involved solely on the ground that a full hearing could be had by defendant in the Broome County Court. The Supreme Court had jurisdiction to determine the issue presented but was not required to do so. (People ex rel. Shapiro v. Keeper of City Prison, 290 N. Y. 393; People ex rel. Childs v. Knott, 228 N. Y. 608.)

This court has reviewed the merits of the controversy. There is no merit in relator’s contention.

The order should be affirmed, without costs.

All concur.

Order affirmed, without costs.  