§ 7004.Content of writ.

A form for the writ, and one for the writ of certiorari to inquire into the cause of detention, were formerly included in the CPA §§ 1237 and 1238. They do not appear in this article. Subds 1 and 4 of CPA § 1236 have been deleted. Subd 1 of that provision, which dealt with the seal under which the writ must have been issued, formerly applied to all state writs. Code Civ Proc § 1992. With the abolition of state writs other than habeas corpus and certiorari to inquire into the cause of detention, it was transferred to the habeas corpus provisions of the civil practice act. A seal is not required to insure compliance; its absence has been held not to invalidate the writ of habeas corpus. Jenkins v Kuhne, 57 Misc 30, 31, 107 NY Supp 1020, 1022 (Sup Ct 1907), affd 195 NY 610, 89 NE 1109 (1909). Subd 4 of CPA § 1236, which dealt with indorsement of the writ, is covered in § 2219, covering the signing of an order.

Subd (a) of this section except for minor language changes, is the same as subd 2 of CPA § 1236. See § 1301 obviating the need for the phrase “the people of.” The first phrase of subd (b) of this section is new, and codifies former practice. See 21 Carmody-Wait, Cyclopedia of New York Practice 44 (1956). The second phrase restates subd 3 of CPA § 1236. Instead of being styled a defendant, the person to whom the writ is directed is referred to as a respondent, in keeping with the treatment of the petition as one commencing a special proceeding. See § 401.

The first sentence of subd (c) of this section is derived from subd 3 of CPA § 1239. The only change in substance is that requiring the writ in certain instances to be returned to the “nearest accessible” judge, rather than to the “nearest accessible . . . judge in an adjoining county.” This seems more reasonable than the original provision, and will prevent difficulty should all judges in adjoining counties be incapable of hearing the matter. The term “institution” is intended to encompass “prisons.” The second sentence of the subdivision is derived from subd 2 of CPA § 1239. Although the latter provision clearly permitted the Supreme Court or its justices in one county to make a writ returnable in another county when the prisoner was detained there, did not specifically provide for the place of return where the prisoner was detained in the same county as the court or justice. The negative implication of the provision, however, was that writs in the latter instance might have been returnable only in the county from which issued. That reading of the subdivision is supported by the fact that it was originally enacted as a separate amendment to the existing habeas corpus provisions (Laws 1837, c 240, § 1), and presumably would not have been required had the Supreme Court and its justices already had the power to make writs returnable in other counties. The interpretation seems to be in accord with actual practice (see People ex rel. Potterton v Potterton, 169 Misc 404, 7 NYS2d 273 (Sup Ct 1938)), and it is incorporated in this subdivision. Other language changes have been made in the former provision, but no change in meaning is intended. Note should be taken of § 25 of the Code of Criminal Procedure. This provision prevents the removal of a prisoner from a county jail by habeas corpus when the Supreme Court is in session in the county, unless the writ has been either issued by or made returnable to that court. It is derived from an early statute dealing with the government of county jails generally, and formerly applied to courts of oyer and terminer. Laws 1847, c 460, § 27. Its purpose appears to be to assure that control over the prisoner is vested in the court entrusted with his ultimate disposition. People ex rel. Whitman v Woodward, 150 App Div 770, 135 NY Supp 373 (2d Dept 1912). The provision is both illogical and unduly restrictive, and therefore has not been incorporated into this subdivision; it has been repealed. The trial or other disposition of a County Court prisoner is not always within the exclusive jurisdiction of the Supreme Court. See Code Crim Proc § 39 (County Court); id. 50 (Court of General Sessions). The fact that the practical operation of the provision is suspended when the Supreme Court is not in session is clear indication that the provision is not essential to effective jail delivery. Any reason for the rule is outweighed by the inflexible restriction it imposes upon the place of return of a writ issued by any judge or court other than the Supreme Court in the county where the prisoner is detained. Not only must the writ be returnable to the Supreme Court sitting in the county of detention, but it must be returned to that court as a body and not to a justice thereof. See People ex rel. Whitman v Woodward, supra at 775, 135 NY Supp at 376. The sound discretion of the officer issuing the writ should be adequate assurance that it will be returnable before an appropriate official.

Subd (d) of this section is based upon subds 1 and 4 of CPA § 1239. It changes the rule of subdivision 4, by permitting a court or judge petitioned to make a writ returnable on Sunday. CPA § 1235 explicitly permitted the writ to be granted on a Sunday and where strong reason exists for making it returnable on this day, no restrictions should prevent it. See § 7006(a) for the time of return where the writ is made returnable forthwith. Cf. § 7008(a). The words “or time” permits the court to require production of the prisoner on the same day.

Under the civil practice act, in order for service of a writ directed against a sheriff, coroner, constable or marshal to be complete, there must have been tendered to the official his fees for bringing up the prisoner and an undertaking covering both the fees for return of the prisoner and security should he escape. CPA §§ 1242, 1243(2), 1243(3), 1243(4). Although there was no requirement for the court or judge issuing the writ to specify those items in his certificate allowing the writ, the officer might have refused to obey the writ if the fees and undertaking were not tendered to him. CPA § 1243(2). Subd (d) of this section requires a public officer to whom the writ is directed to deliver the person detained whether or not fees are paid to him. Liberty of our citizens, the committee believes, is too precious to depend upon the payment of fees. Persons other than public officers to whom the writ is directed will not, however, be required to assume the cost of producing the prisoner if the court orders payment of charges. The requirement of an undertaking against the escape of the prisoner from a private person is made discretionary with the issuing court or judge. No sound reason can be seen to unnecessarily burden the petitioner with the expense of such an undertaking, unless the court or judge petitioned deems it necessary. Service is deemed to be incomplete until the required fee and undertaking are tendered.

Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1963, ch 536; L 1964, ch 388, eff Sept 1, 1964.