
    SUPREME COURT—SPECIAL TERM—NEW YORK,
    March, 1911.
    THE PEOPLE ex rel. AM. SURETY CO. OF N. Y. v. GEORGE W. BENHAM, WARDEN.
    (71 Misc. 345.)
    (1) CERTIORARI—HOW DETERMINED—SCOPE AND FORM OF DECISION-JURISDICTION — Jurisdiction of particular courts — Conflicting State and Federal jurisdiction.
    Where, after the conviction of a person in the District Court of the United States in the State of Pennsylvania of conspiracy against the government, he is released on bail pending his appeal to the Circuit Court of Appeals, and, before the disposition of the appeal, he is tried in the State courts of New York on a charge of forgery and sentenced to prison by reason whereof he cannot be surrendered to the United States courts upon the affirmance of his conviction in Pennsylvania; and where the United States court thereupon proceeds against his bail and the bail and those who had been adjudged the owners of securities pledged by the defendant to indemnify his bail apply to the State court by writ of certiorari issued as a substitute for a writ of habeas corpus to deliver up the defendant to them that they may surrender him in exoneration to the United States court, held:
    The provisions of section 2032 of the Code of Civil Procedure require the judge who grants the writ to remand the prisoner.
    The judge of a State court has not the power upon such an application of a Federal judge under section 1014 of the United States Revised Statutes.
    
      Semble, the court first obtaining jurisdiction or custody of either a person or property retains that jurisdiction until the end cannot be deprived of it.
    The refusal of the United States authorities to join in the application to have the defendant surrendered by the State while at the same time proceeding against the bail upon the bond might constitute an equitable defense to such proceedings.
    Application to transfer a convict in a State prison to Federal authorities.
    
      
      William, P. Maloney and Henry P. Wilcox, for relators.
    
      John F. Clarke, district attorney of Kings county, and Robert J. Burritt, district attorney of Cayuga county, for respondent.
   Gavegan, J.

This application is addressed to me as a justice of the Supreme Court, to transfer and deliver on Frank C. Iviairrin, who is 'confined in the State prison at Auburn, N. Y., to Mis¡urety or a United States marshal, to- 'be delivered into the United States- District Count at Philadelphia, Penn., to answer for the crime of conspiracy against the government, of which he was convicted in that court. The proceeding instituted to accomplish this purpose is by a writ of certiorari, this method having been -adopted in place -of habeas- corpus as a matter of convenience so as to- avoid bringing the prisoner before me. It appears that in- February, 1895, Mamin, who- was an attorney in this State, delivered to his- client, one -Caroline Barry, certain fictitious ¡and forged bonds and mortgages for large sums of money received! from her for investment and absconded from -.the State of Hew York. He was indicted in Kings county for forgery, -and fled firo-m place to place under -assumed names, until .some time in 1899, when he appeared in the city o-f Philadelphia, Penn., under the assumed name of Franklin Stone. There, with the moneys of Caroline Barry, he purchased various pieces of property and bonds -and1 mortgages, s-ome in Ms o-wn mame and others in the name of his- wife, known -as Annie F. Stone. In June, 1905, he was indicted at Philadelphia, Penn., for conspiracy against the United States ,and convicted and sentenced to four years’ imprisonment in the Eiastern peMtentiary in that State. He appealed to- the United States Circuit Court of Appeals for the Third Circuit, ¡and while this appeal was pending applied for release upon bail. Otn June 15, 1908, a bail bond in the sum of $10,000 executed by the American Surety ompany of Hew York ¡and by Miarrin, otherwise known as Stone, was given and filed in the said United States court. The condition of the bond is : “ That if he, said Frank C. Marlin, alias Frank E. Stone, alias Franklin Stone, alias Thomas Harper, whose application for a writ of error in the above matter bias been allowed and is now pending, shall be and appear at the District Court of the United States foir the Eastern District of Pennsylvania, upon the determination of the proceedings in said writ of error1 and the receipt and filing of a mandate or other process or certificate showing the disposition thereof by the United States Circuit Court of Appeals for the Third Circuit, or within five days thereafter, to answer and obey whatever final orders or judgment shall he made in the premises and not depart said court without leave thereof, then this recognizance to be void, otherwise to remain in full force and virtue.” During the period of Ms liberty pending this appeal Marrin came within the State of Hew York, where, under the old indictment in- Kings county for the forgeries committed by him in 1895, he was tried in the County Court at Kings county, convicted of forgery in the first degree and sentenced to imprisonment in the State- prison at Sing Sing under an indeterminate sentence, -the maximum being twenty years -and -the minimum fifteen years. After Marrón.’arrest in Kings county he applied' to the United States District Court for the Eastern District of Hew York for a writ of habeascorpus and for an order for hie removal to- the Eastern District» of Pennsylvania. The application wiaisi opposed by the district -attorney of Kings county, ,and denied by Unitedi States District Judge Ch-atfield in an opinion reported1 in 164 Federal Reporter, 631. On December 8, 1907, Caroline- Barry died at Kings-county, in this city, 'and on May 23, 1908, one of the relators,. Walter Westlake, was duly appointed her administrator by the Surrogate’s Court of Kings county. In the same year Westlake as such administrator commenced', an action in equity in the Supreme Court in this- State against Marrin and Ms wife to impress a trust in Ms favor -as such administrator u-pon the properties in Pennsylvania standing in the name of Mamin and his wife, purehasied with the moneys of Caroline Barry, and for a judgment and decree directing a conveyance, bill of sale and assignment to him of such properties', 'the amount of moneys embezzled by Marrin being fixed by the judgment, with interest, at $129,629.87. One of the parcels of real property in Pennsylvania purchased with Caroline Barry’s money, which, was taken in the name of Marrin’s wife under the name of Annie F. Stone, was sold 'by Mrs. Marrin or Stone and $7,500 of the proceeds in cash was deposited wiith the American Surety Company of Hew York by Marrin and his wife together with other collateral to indemnify the American Surety Company on the bail bond of $10,000' above mentioned. In the final judgment in the Supreme Court in this State in favor of Westlake in the action in equity referred to Marrin and his wife were directed to execute a bill of sale and assignment of this- $7,500 to Westlake as such administrator. Marrin and his wife having failed and' refused to make these conveyances, bills of sale and assignments, and the property being situated: in Pennsylvania, Westlake as such administrator filed a bill in equity in the United States Circuit Court for the Eastern District of Pennsylvania against Marrin and his wife and against a receiver in bankruptcy of Marrin appointed in the United Sitaites cour,t there, and an ancillary receiver of an institution known as the Story Cotton Company, a swindling concern with which Marrin was connected. On Westlake’s bill in equity the judgment and find1ings of the Supreme Court of the Sitiaite of Hew York were made' the judgment and findings, of the United States ,Circuit Court for the Eastern District of Pennsylvania, and the decree in equity in the said United States Circuit Court awarded the properties to Westlake, and likewise ordered and directed Marrin and his wife, otherwise known as Stone, to make conveyances, bills of sale and 'assignments of the property in Pennsylvania, including the $7,500 cash deposited as indemnity with the American Surety Company. Pursuant to this decree Marrin! and his wife made the conveyances, hills of sale and assignment. In the month of February, 1909, the United States Circuit Court of Appeals for the Third Circuit affirmed the conviction .against Marrin, who at that time under the sentence of the court in this State was confined in the State prison iat Sing Sing. Marrin being called to the United States District Court for sentence under the judgment of affirmance and not present, his bail bond of $10,000' was forfeited. In June, 1909, a writ of .scire facias on recognizance of bail in the United States District Court for the Eastern District of Pennsylvania was issued against Marrin and against the American Surety Company, ' one of the relators, by the United States, to recover the $10,000'. on the bail bond. A previous application for the relief asked ' for on this proceeding was made to Mr. Justice Stapleton of this court, but Marrin in the meantime was transferred from Sing Sing prison to' Auburn prison, and the old application has been withdrawn and this new one has. been made. The appli- . cation has been opposed 'by the district attorney of Bings county. Thus it will be seen that Westlake has a judgment of the United States court and of this court making him the owner of the $7,500 cash of the indemnity put up with the American Surety Company on the bail bond. On the other hand we have the United States suing the American Surety Company on the forfeited bail bond, and, lastly, Marrin is confined in the State prison at Auburn and cannot be produced at Philadelphia so as to obtain a remission of the forfeiture of the bond. Under these circumstances it is alleged by the American Surety Company and by Westlake, as. administrator of Caroline Barry, deceased, that in violation of the Constitution of the United States and of the State of Hew York they are being deprived of their property without due process of law, and they petition this, court ; to deliver up Marrin to the surety as his bail to be surrendered to the United States District Court at Philadelphia, to prevent the government from collecting the bond. They contena that the United States has a paramount right to the custody of Marrin to carry out and execute the sentence of conviction in the Federal court in Pennsylvania, and that the orderly administration of justice requires that Marrin should first serve his sentence under that judgment of conviction, that court having first obtained jurisdiction, and that h.e can then he required to serve out the balance of his judgment of conviction in this State. In May, 1909, when Marrin was called in the United States court at Philadelphia for resentence he made application to stay the forfeiture of the recognizance, and both the relators in this proceeding appeared and asked for the remission of the forfeiture to the extent of the moneys belonging to Westlake as administrator. This was disposed of in, an opinion by the United States District Court, reported in United States v. Marrin, 170 Fed. Rep. 476. In that case the court intimated that had Mrs. Barry herself been the petitioner it might make a strong case to move the court to a remission of the penalty, hut that claim was only made by her heirs, who were not entitled .to the same consideration in the determination of -the question that the decedent would have been entitled to receive. I am unable to see what difference there could he in the merit of an application made by the representatives of the decedent and the decedent herself, andi probably these remarks, as well as those relating to the alleged .action of the surety company at the time of Marrin’s application before Judge Chatfield, referred to in 164 Federal Beporter, were mere obiter statements of the court, as, the court appears to have- disposed o-f the defendant Marrin’s .application upon different grounds. The relator the American Surety Company claims that as the United States court in Philadelphia obtained jurisdiction of Marrin’s person before the said court in Few York 'the Federal court retains it, and that 'as Mamin was released on hail on which i,t became surety Marrin was in contemplation of law in the- custody of his hail, and that, therefore, the surety company, as such bail, has -the right to his custody and .to arrest him -anywhere in the-United States. In this they appear to be supported by excellent authority. Reese v. United States, 9 Wall. 13 ; Taylor v. Taintor, 83 U. S. 366, 371, 372. The surety company also claims that if it is not granted the relief sought it will be put in the position of having ho, defense to the suit on the bond in Pennsylvania now pending brought by the United States, although in law it basi a right to the custody of Marrin’ person. Taylor v. Taintor, supra. Marrin having been in the custody of the United States court before his conviction here that court has a paramount right to his custody now. Matter of Johnson, 167 U. S. 120 ; Matter of Beavers, 125 Fed. Rep. 988; United States v. Martin, 17 id. 150, 154, 155 ; U. S. R. S., § 1030. The rule is firmly established thiat where a court, first obtains jurisdiction or custody of either a person or property it retains that jurisdiction until the end, and cannot be deprived of it. In this respect there is no distinction between property taken into the custody of the court -and a person taken into custody of the law. Matter of Johnson, 167 U. S. 120 ; Beardslee v. Ingraham, 183 N. Y. 411. From this 'the relators argue that Marrin is not, therefore, detained by “ virtue ” of a final judgment of a competent ” tribunal, and that the judgment of conviction in the County Court of Kings county loses its virtue as against the paramount right of the United States: It is claimed, therefore, that; 'both the surety company and Westlake will be deprived of their property unless Marrin is arrested and turned over to- his bail to be delivered to the court at Philadelphia to procure a remission of tire- forfeiture of the bail. West-lake has a judgment of this court, as stated, that the moneys put up with the surety company are his to the extent of $7,500. He also has, the judgment of the United States Circuit Court to the same effect. Therefore-, as both the surety company and Westlake were not parties- to the criminal action against Marrin. in this State, they appear to come 'directly within the language quoted and approved by the Court of Appeals' in this State in Beardslee v. Ingraham, 183 N. Y. 414 : “ That any person not a party to the suit or judgment whose property has been wrongfully, but under color of process, taken and withheld, may prosecute by ancillary proceedings in the court whence the process issued his remedy for restitution of the property.” Both relators claim that the court in this State has by its process and judgment taken Marrin, who was, in contemplation of law, in the custody of the United States court and in custody of the bail, and has under color of that judgment incarcerated Marrin in the State prison, thereby preventing him from appearing in response to the demand for him in the Federal court in Philadelphia, whereby the property of both relators is taken 'and destroyed in defiance of the judgment of the Supreme Court in this State and of the judgment of the United States Circuit Court in Pennsylvania. Treating this proceeding, therefore, as ancillary to the criminal proceedings' under which Marrin was indicted and convicted in this State and taken from his bail or surety, it is said 'this Court may make an order turning Marrin over to his bail to' be delivered to the Federal court as indicated. The relators argue that this is the proper court in which to malee the application, as it is a court of the State of Few York, and that it is more in keeping with the dignity of the State of Few York that it should in recognition of the paramount right of the United States deliver over to their courts1 Marrin, who was in their custody and that by :sO’ doing this court will be upholding not only the paramount right of the United States and its dignity, but also the dignity of this court and its own judgment, 'and that of the United States Circuit Court. The return made by the warden of the State prison at Auburn does not traverse any of the allegations in the petition, but sets forth! that before the service of the writ, and on or about October 21, 1908, Marrin was duly convicted of the crime of forgery in the first degree at a term of the County Court at Kings1 county and sentenced to he imprisoned in the State prison at Sing Sing as described, and that he was thereafter received at Sing Sing, and subsequently transferred from there to Auburn prison, .and 'annexes a copy of the commitment or sentence under which Marrim is now confined in the Auburn prison. It is conceded that there is no controversy of the facts1, but the learned district attorney claims that the application is made by civilians., thiat no Federal authorities .are taking part in the application, 'and that there is no. controversy between the Federal and State 'authorities as to which is entitled to' the possession of the prisoner. The learned district attorney .also- calls the court’s attention to the allegation in the petition; that the United States on the occasion when Marrin himself ¡applied to the United States District Court for the Eastern District of Few York to. he removed to Philadelphia instructed the United States district attorney for that district to refuse to join in the application for the removal of Marrin, and that they now refuse to- exercise their paramount right and power to canse the removal of Marrin. ' Under 'these circumstances the learned district attorney claims that there is no warrant for this proceeding in law or reason. These reasons- do not appear to- me to he a sufficient answer to the application. Indeed, I am of the opinion that the instruction of the United States to the United States district attorney to refuse to join in the application for Marrin’s removal at the time the application was made by Marrin before Judge Chatfield, and its refusal to join in any application now, while it is at the same time proceeding against the hail upon the bond, might constitute an equitable defense to the proceedings on 'the bond (State v. Allen, 2 Humphr. [Tenn.] 258), and such 'an attitude would, it seems to me, be in contravention of all moral principles. What seems to me, however, to be an insurmountable obstacle to the .application is the question of power on the part of this court to grant any relief in the premises, by reason of the provisions of subdivision 2 of section 2032 of the Code of Civil Procedure, which provides that, if it appear ou such application as this that the prisoner is detained by virtue of a final judgment or decree of a competent tribunal of civil or criminal jurisdiction, the court or judge must forthwith make a final order to remand) the prisoner. The answer of the relators to this is two-fold: first, it is claimed that Marrin is not detained by “ virtue ” of a final judgment of a, competent ” tribunal, since that judgment is in contravention of the paramount right of the United States, and hence the hail, to the custody of Marrin and the right of such hail to take him in any part of the United States ; and, second, that the refusal to ecognize this paramount right, when such, refusal operates to destroy a judgment for property duly rendered by the Supreme Court of this State and by the United1 States Circuit Court in Pennsylvania in favor of Westlake as administrator, is. in viola.tion of the Constitution of the United States and of the Constitution of the State of ISTe-w York. In support of this contention they cite article VI of the Constitution of the United States, which provides that “this constitution and the laws of the United States which shall he made in pursuance thereof, And all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land ; ■and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding/’’ It is said 'that under section 1014 of the United States Revised Statutes, any justice of the Supreme Court in any part of the State before whom, under section 2011 of the Hew York Code of Civil Procedure, the application for certiorari comes., is, in fact, a Federal judge within the meaning of that section of the United Statesi Revised Statutes, and that under section 1014 of the United States Revised Statutes, which is, of course, the supreme law of the land, it is the duty of the Supreme Court justice, proceeding thereunder and applying “ the usual mode of process ” prescribed by o-ur Code for1 sucK -cases (which usual mode of process is adopted by section 1014-of the United States Revised Statutes) under section 2036 of the Code of Civil Procedure, to- make an order remanding1 Marrin “ to the custody of the officers or the person so entitled,’” which, the relates say, is the American Surety Company, the arresting bail. The relators, therefore, argue that it is the duty of the justice of the Supreme Court to whom this application is made, who for such purpose is to be deemed a Federal judge, to turn Marrin over to the custody of the bail to be delivered to the. United States marshal at Philadelphia. So- far as the exercise-of any discretion is concerned, the case made by the relators is1 a clear one, -and were it only a question of discretion I should t certainly grant the application and -direct the prisoner to be; turned over to the bail to he- delivered to the United States' court at Philadelphia. I think this would he in accordance with principles of justice, and would comport more with the dignity of the people of this State and of its courts, besides being a recognition of the undoubted paramount right of the Federal court ; hut on the question of power I am not satisfied, in the absence of -any express authority on the subject, that I can act as a Federal judge within the meaning of section 1014 of the Revised Statutes- of the United States. If I were satisfied! that a justice of this court was or could be a Federal judge for the purpose of such an application a-s this under section 1014 of the United States Revised Statutes, I would find no difficulty even in holding that the power was not lacking to transfer the-prisoner as requested, in -spite of subdivision 2 of section 2032' of -the Code of -Civil Procedure .above referred to. The right of the State of Few York to vindicate its own judgment of conviction against Marrin for the offense against its laws would im no way be affected by such' a -direction as i-s prayed for, because-if Mamin is incarcerated in a Federal prison outside of the State of iSTew York he will be, under the Constitution of the-United States 'and the act of Congress governing such, eases, technically a fugitive from justice, and on the expiration of his sentence under the judgment of the Federal court he can be again taken by the Governor of the State of Hew York through extradition proceedings. People v. Hagan, 34 Misc. Rep. 85 ; U. S. R. S., § 5278 ; Roberts v. Reilley, 116 U. S. 80 ; People ex rel. Corkran v. Hyatt, 172 N. Y. 176, 183, 184 ; Matter of Hope, 10 N. Y. Supp. 28 ; Drinkall v. Spiegel, 68 Conn. 441 ; People ex rel. Draper v. Pinkerton, 17 Hun, 199. But I am of the opinion ‘that this application should he addressed in the first instance to the United States district or circuit judge within the district in which the Auburn State prison is located or otherwise. On such application there would he, it seems to me, no doubt whatever of' the power of that court to transfer the prisoner. Matter of James, 18 Fed. Rep. 853 ; United States v. Martin, 17 id. 150. And if that court should entertain any delicacy in making the order upon the ground that comity required that the application must be first made to the courts of the State of New York, and should hold that this court had the power under the sections of .the United States Revised Statutes referred to and otherwise a; new application could he made to this court. The interference of either a State court with Federal jurisdiction or of ,a, F'ederal court with State jurisdiction is one of such great delicacy .that any conflict must sedulously be avoided so that each may carry out its functions within its proper sphere without embarrassment. Under all the circumstances, therefore, I feel constrained solely on the ground of want of power to deny this application, hut without prejudice to the right of the petitioners to make .application to the Federal court as indicated', and to the renewal of this application in this court in the event of that court holding that the power existed in this court, and that the application should he first made here.

Ordered accordingly.  