#### Andrea Polo, Appellant, *v.*Domenico D’Achille and Nunzio D’Achille, Respondents.

(No. 2.)

Second Department,

May 29, 1913.

Habeas corpus ad testificandum — arrest in civil action — court cannot summarily vacate order — procedure.

Where a defendant arrested in a civil action was brought before the court upon a writ of *habeas corpus ad testificandum*the court has no authority summarily and without notice to the plaintiff to vacate the order of arrest, and especially so where previous applications to vacate the order have been denied at Special Term.

Such writ does not raise any question as to the defendant’s detention and the legality thereof cannot be raised except by a writ of habeas corpus to which a return has been made upon notice.

Appeal by the plaintiff, Andrea Polo, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of February, 1913, denying the plaintiff’s motion to vacate and set aside an order theretofore made herein discharging the defendant Domenico D’Achille from custody.

*Alvin C. Cass,*for the appellant.

*James C. Danzilo,*for the respondents.

Burr, J.:

In this action, which we have previously considered *(Polo*v. *D’Achille, No. 1,*157 App. Div. 294) on an appeal from an order setting aside a verdict in plaintiff’s favor and a judgment entered thereon, an order of arrest was issued, and defendant Domenico D’Achille was taken into custody. When the case came on for trial said defendant was brought before the court upon a writ of *habeas corpus ad testificandum*allowed by Hr. Justice Blackmar. • This writ directed the sheriff of the county of Kings to produce him before the Supreme Court to testify in this action, and contained a further provision “that immediately after the said Domenico D’Achille shall have given his testimony in said action, that you return him to your prison under safe and secure conduct.” After the jury had rendered their verdict on the trial of the *301issues in this action, the learned justice then presiding, in the absence of plaintiff’s counsel and against the protest of his representative, and without any notice of any application therefor, either to the sheriff or to plaintiff, indorsed upon said writ an absolute order for the discharge of the prisoner. Plaintiff thereupon moved to set such order aside, and from an order denying said application this appeal comes.

No authority exists for an order discharging a prisoner under the circumstances here disclosed, and the learned counsel for respondents in his brief does not suggest any. Defendant was held in custody under a valid mandate issued by a justice of the Supreme Court. It appears without dispute that three separate applications had been made at a Special Term of the Supreme Court to vacate said mandate and in each instance the application was denied. The prisoner was not before the Supreme Court, or the justice presiding at this trial, upon any writ affecting the cause of his detention. With one exception, such a writ can only be granted upon petition. (Code Civ. Proc. § 2017.) No petition was presented in this case. The exception referred to is where a justice of the Supreme Court has evidence in a judicial proceeding taken before him that any person is illegally imprisoned or restrained in his liberty within this State. In such case, although he may dispense with application for the writ by petition, the justice is still required to institute the proceeding by the issuing of a writ of habeas corpus. (Id. § 2025.) No such writ was issued. After the issuing of the writ, the person to whom it is addressed must make return thereto forthwith or within the time specified therein. (Id. §§ 1998, 2004.) If it appears upon the return to the writ that the prisoner is in custody by virtue of a mandate issued or made in a civil action, an order for the prisoner’s discharge shall not be made until notice of the time when and the place where the writ is returnable has been given “to the person who has an interest in continuing the imprisonment or restraint.” (Id. § 2038.) Every one of these statutory requirements was disregarded. Defendant was in lawful custody according to the decision of every court and justice who had passed upon the validity thereof, and these decisions the justice who granted the order appealed from had no power to review. *302So far as regularity of procedure is concerned, he might just as well of his own motion have written a letter to the sheriff instructing him to discharge the prisoner.

The order appealed from should he reversed, with ten dollars costs "and disbursements, and the motion granted, with ten dollars costs, and the order to discharge the prisoner should be vacated.

Jenks, P. J., Carr, Bioh and Putnam, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, and order to discharge prisoner vacated.