
    The People of the State of New York ex rel. Nicholas Saia, Appellant, v. Walter B. Martin, as Warden of Clinton Prison, Dannemora, New York, Respondent.
   Appeal from an order of the Supreme Court made at a Clinton County Special Term, dismissing a writ of habeas corpus. Relator was indicted for the crime of robbery in the first degree by a grand jury in the County Court of Erie county. He" pleaded not guilty in the County Court on the same day the indictment was found. Thereafter and under the same indictment he pleaded guilty to robbery in the second degree on November 16, 1936, at a term of the Supreme Court for Erie County. He raises the issue that no order was made transferring the indictment from the County Court to the Supreme Court. The latter court is a court of general jurisdiction and probably an order was not essential, but in any event relator waived the issue by failing to assert the claim before he pleaded guilty. (People v. Washor, 196 N. Y. 104.) Relator was sentenced to Elmira Reformatory, paroled •from that institution on December 1, 1938, and returned as a parole violator on July 8, 1939. Thereafter and on or about February 5, 1940, he was transferred to Clinton State Prison by order of the Commissioner of Correction, who acted under the authority conferred upon him by section 293 of the Correction Law. This section gives the Commissioner authority to direct a transfer when it is found that a prisoner while in the reformatory is incorrigible, or that his presence therein is seriously detrimental to the welfare of the institution. It was found in this case that relator was not a suitable case for Elmira Reformatory. The circumstances indicate that the Commissioner did not act arbitrarily or capriciously and the transfer was proper under the statute. (People ex rel. Krakofsky v. Murphy, 258 App. Div. 761; People ex rel. Palmer v. Snyder, 259 id. 775.) Order unanimously affirmed, without costs. Present —• Hill, P. J., Crapser, Bliss, Sehenck and Foster, JJ.  