People ex rel. Perkersoen agt. The Sisters of the Order of St. Dominick.

given to the judge to issue a certiorari for the purpose of bringing before himself, or before the court where the hearing is to take place, the evidence upon which a final determination may have been made by the court, or officer, before which the proceeding has taken place. And that such a review was neither contemplated nor intended, clearly results from the directions contained in section 2032 of the Code. For that has directed that the court or judge must forthwith make a final order to remand the prisoner if it appears that he is detained in custody by virtue of a mandate issued by a court or judge of the United States having exclusive jurisdiction of the case; or second, by virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction, or the final order of such a tribunal made in a special proceeding instituted for any cause, except to punish him for a contempt, or by virtue of an execution or other process issued upon such judgment, decree, or final order. This direction excludes, by necessary and clear implication, the authority to inquire into the force and effect of the evidence upon which the determination may have been made. They are no more than a repetition of those previously contained in the Revised Statutes. And this construction is further sustained by those contained in section 2033 of the Code, declaring the cases in which the person may be relieved from imprisonment, neither of which includes or justifies a review of the evidence resulting in the judgment or order of the court or officer. Even the much criticised case of People agt. Liscomb (60 N. Y., 559), does not permit an inquiry into the effect of the evidence to be made. For by that it was held that the court, or officer, could not go behind the judg ment and inquire into errors or irregularities preceding it, to determine whether it had been properly entered or not, but was confined to the judgment and process itself in the hearing and decision which might be made.

The point whether a court, or officer, could go beyond the commitment or order set forth in its recital, to determine

People ex rel. Perkersoen agt. The Sisters of the Order of St. Dominick.

whether it was justified by the evidence, has been often examined in other cases, where it has been held that such a proceeding was wholly unauthorized (Stewart's case, 1 Abb., 210; Matter of Prime, 1 Barb., 340; Gray's case, 11 Abb., 50; Bennac agt. People, 4 Barb., 31; Case of Twelve Commitments, 19 Abb., 394; Case of Williamson, Id., 413.)

The statute required no more to take place before the magistrate than appears by the commitment to have been done, for it has simply provided that when a child shall be brought before him for a hearing he may commit it to such an institution as is maintained by the appellant. No other or more formal proceeding than that which took place has been provided, and by the recitals in the commitment all the requirements contained in the statute appear to have been observed.

If, however, any investigation under the habeas corpus act can be made into the sufficiency of the evidence before the magistrate, then that which was taken was sufficient to comply with the requirements of the statute. The form in which it should be taken has not been prescribed, and it has accordingly, in an uncontested case, been left very much to the discretion of the magistrate. It was taken by him in writing, subscribed and sworn to by the witness, and established all that was required to justify the commitment which was made. It was in the following form:

STATE OF NEW YORK, CITY AND COUNTY OF NEw York.

88.:

John F. Potter, of Earl's Hotel, Canal and Centre streets, being duly sworn, deposes and says that on the 14th day of January, 1884, at the city of New York, in the county of New York, one Annie Holton, a female child actually and apparently under the age of fourteen years, to wit, aged twelve years, was found begging, receiving and soliciting alms in Centre street in violation of section 291 of the Penal Code.

The People ex rel. Eck agt. The American Female Guardian Society.

Wherefore deponent prays said child may be committed to some institute.

Sworn to before me, this 30th

day of January, 1884.

JOHN F. POTTER.

P. G. DUFFY,

Police Justice.

and fully sustained the conclusions of the magistrate and justified the commitment which was issued by him.

The order should be reversed, both writs dismissed, and the child recommitted to the custody of the appellant.

SUPREME COURT.

THE PEOPLE ex rel. HENRY ЕCK, respondent, agt. THE AMERICAN FEMALE GUARDIAN SOCIETY, appellant.

Commitment under section 291 of the Penal Code-Habeas corpus-CertiorariJudge issuing the writs cannot review the hearing had before the committing magistrate.

Where a child four years of age was committed by a police magistrate for violation of subdivision 4 of section 291 of the Penal Code, a judge cannot by means of a writ of certiorari directed to the magistrate, review the hearing had before such magistrate, and determine whether he had or had not acted upon sufficient evidence in making the order of commitment.

First Department, General Term, January, 1885.

Before DAVIS, P. J., and DANIELS, JJ.

APPEAL from an order discharging Wilhelmina Eck from the custody of appellant.

The People ex rel. Eck agt. The American Female Guardian Society.

John B. Pine, for appellant.

E. T. Gerry, of counsel, for the New York Society for the Prevention of Cruelty to Children. I

Charles Steckler, for respondent.

DANIELS, J.-The proceedings in this case are similar to those in the case of the Sisters of the Order of St. Dominick (ante, 132), and what has been there said concerning their regu larity, and the authority of the court is equally applicable to his appeal. The commitment was that of a child of about four years of age, who was accused of frequenting the company of prostitutes and of being found with a reputed prostitute. This brought the case within subdivision 4 of section 291 of the Penal Code, and authorized the magistrate before whom the child was taken to commit her to the custody of this society. The commitment which was returned showed a full compliance with the provisions of the statute, and completely answered the application made for the discharge of the child. The court, however, in this as in the other case, by means of a writ of certiorari directed to the magistrate, entered upon a review of the evidence produced for his consideration; and deeming that not sufficient to warrant his determination, ordered the discharge of the child. For the reasons already assigned, this proceeding was without the sanction of the law, and the order should be reversed, the writs dismissed and the child recommitted to the custody of the appellant.

Bird agt. The Mayor, &c., of the city of New York.

SUPREME COURT.

JOHN H. BIRD, agt. THE MAYOR, &c., of the City of New York.

New York (city of) — Board of estimate and apportionment — Their power to transfer from one appropriation to that of another -Majority of board may decide.

It is within the powers of the board of estimate and apportionment to transfer from an appropriation made to a certain department for one purpose, to another purpose in the same department.

Where any number of persons are appointed to act judicially in a public matter, all must confer, but a majority may decide.

Therefore, where an act is authorized to be done by the board of estimate and apportionment, the ordinary rule of law applies, and a majority of the whole board, at a meeting of all the members thereof, can legally decide upon the propriety of doing such act.

At Chambers, New York, December, 1884.

John H. Bird, plaintiff in person.

David J. Dean, for defendant.

LAWRENCE, J.-Section 207 of the consolidation act confers upon the board of estimate and apportionment power to make the transfer contemplated by the resolution of November 12, 1884, which resolution is set forth in the complaint herein. Section 204 of said act, confers a similar power upon said board. The case of the present plaintiff against the mayor, &c., and the comptroller, recently decided by the general term of this department, does not deny the existence of such power. It simply decides that the power of transfer of excesses in appropriations is confined to, and can only be exercised in cases, where appropriations actually made have proved deficient, and that the board have no authority to use excesses for new objects or purposes, or to make defeated appropria tions successful.

The resolution in question is intended to transfer from the