People ex rel. Lutfey v. Byrne

247 A.D. 797

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1936
• Status: Published

Opinion

Writ of certiorari dismissed. The writ is directed to a justice of the Supreme Court. The relator was committed pursuant to section 1628 of the Penal Law; it appeared to the respondent that the relator had committed the crime of perjury in an action tried before him. Such commitment is the same as a commitment by a city magistrate after a hearing, holding the accused to answer in another court. The hearing here was the trial in which the relator testified. A writ in a case like this can only be issued under article 77 of the Civil Practice Act. The provisions of article 78 do not apply. It must appear that the relator was actually imprisoned or restrained of his liberty within the meaning of section 1230 of the Civil Practice Act. This relator is on bail and a writ will not lie. (People ex rel. Albert v. Pool, 77 App. Div. 148.) The writs under article 77 must not be confused with the former writ of certiorari to review, now replaced by the order of certiorari under article 78. Section 1312 of the Civil Practice Act provides that article 78 is not applicable to a certiorari brought to review a determination made in a criminal matter except a criminal contempt of court. Present — Lazansky, P. J., Young, Davis, Johnston and Adel, JJ.