People Ex Rel. Allen v. . Hagan , 170 N.Y. 46 ( 1902 )

I must dissent from a determination of this appeal, which appears to be very technical and to rest upon a ground not taken in brief, or upon argument. Furthermore, while it is true that the relators demurred to the return to the writ, they certainly had no such point in their minds as Judge O'BRIEN's opinion raises. Their petition for the writ, which, under section 2019 of the Code of Civil Procedure, (sub. 5) is required to "state in what the alleged illegality consists," not only fails to state the illegality to consist in the form of the commitment, now, exmero motu, suggested; but it expressly sets forth that the cause of the imprisonment was "the crime of book-making."

Again, in my opinion, when the justice of the Special Sessions, in issuing his warant of commitment, specified that it was "upon a charge of violation of section 351 of the Penal Code," he does state, sufficiently for the protection of the officer executing it, the offense, or crime, for which the prisoner is held to answer at the General Sessions. The statute thus referred to was directed against poolselling and book-making. The office of a commitment is not to furnish information, or a detailed statement of the circumstances, under which the relator is charged to have offended against the statute. (People v. Johnson, 110 N.Y. 134-142.) But, however that may be, I think the objection, if one it be, has never been taken by the relators in any available way and, therefore, it is not for us to raise.

PARKER, Ch. J., MARTIN, VANN, CULLEN and WERNER, JJ., concur with O'BRIEN, J.; GRAY, J., dissents.

Judgment reversed, etc.