People Ex Rel. Duryee v. . Duryee

Yaw, J. The power of the Appellate Division to reverse the order of the Special Term is challenged by the appellant and section 2058 of the Code of Civil Procedure is cited in support of the challenge. That section provides when appeals may be taken in cases arising under the article relating to the writ of habeas corpus issued to inquire into the cause of detention. (Code Civ. Pro. ch. 16, tit. 2, art. 3.) It authorizes an appeal “ from an order refusing to grant a writ of habeas corpus * * * or from a final order, made upon the return of such a writ, to discharge or remand a prisoner, or to dismiss the proceedings. * * * An appeal does not lie, from an order of the court or judge, before which or whom the writ is made returnable, except ” as thus prescribed. The appellant claims that the appeal to the Appellate Division was not taken from an order “ to dismiss the proceedings,” but from an order refusing to dismiss, from which, as he insists, no appeal is allowed by the statute, and to sustain his position he cites Matter of Larson (31 Hun, 539; 96 N. Y. 381). The appeal in that case, however, was from an order directing a further return to the writ, not from an order refusing to dismiss the writ. After quoting section 2058, the court said: “ This is not an appeal from an order refusing to grant either of the writs named, nor is it from a final order made upon the return of such writs as provided. It is very manifest that'the order from which the appeal is taken is not embraced within the provisions of the section cited. The order in question only required a further return to the writs, and upon such an order no appeal lies and the General Term had no authority to entertain the appeal, or to determine whether the judge was authorized to make the order.” While the case "is suggestive, it is not controlling, for the order then in question was neither final nor in any other respect such as the statute says may be reviewed. We think, however, that the appeal to the Appellate Divi *445 sion in the case before us was not authorized by law, because the order made at Special Term was not a final order, and that the order be final is expressly required by the statute as a condition of appealing. It did not determine or end the proceeding, but continued it in force, leaving it to be ended by an order to be subsequently made. If the motion had been granted and the proceeding dismissed, the order would have been final, because the matter would have been out of court and no further order could have been made therein. If the order had been complied with, evidence taken, the material issues decided and an order then made dismissing the pi’oceeding, it would necessarily have been final. If such an order would be final, the one made at Special Term was not, for there cannot be two final orders in the same proceeding, both made by the same court and in force at the same time. This construction is in accordance with the section of the Revised Statutes, which is the prototype of section 2058 of the Code, and which provided that no review should be had in habeas corpus proceedings “ until a final adjudication shall have been made by such officer upon the claim to be discharged or bailed.” (3 R. S. [6th ed.] p. 282, sec. 85.) Under that section it was held that there must be a final adjudication as to the custody of the child before a writ of review could be issued. (Husted's Case, 17 Abb. Pr. 326.) So, the Appellate Division of the first department held in a case decided before that now under review that “ the law has expressly taken away the right to appeal from incidental orders * * * in these proceedings.” (People ex rel. Keator v. Moss, 6 App. Div. 414, 419.) The writ of habeas corpus, as its history shows, is a sum mary proceeding to secure personal liberty. It strikes at unlawful imprisonment or restraint of the person by state or citizen, and by the most direct method known to the law learns the truth and applies the remedy. It tolerates no delay except of necessity, and is hindered by no obstacle except the limits set by the law of its creation. Hence the legislature commanded that no appeal should be taken from *446 incidental orders made in the course of the proceeding, as that might cause delay and prolong the injustice. Even the evil of a wrong order, if not vital, was preferred to the danger of delay caused by an appeal therefrom. This, we think, was the theory of the statute, when, contrary to the rule in other cases, it limited appeals in such proceedings to final orders, even when taken to the Supreme Court. . When the writ is refused, an appeal is allowed, for that is vital. In either alternative of the remand or discharge of the prisoner, the right to appeal is given, as well as when the proceedings are dismissed. All these are both final and vital, but all else was regarded as temporary and incidental and not to be remedied by an appeal which might postpone the enjoyment of liberty. The order of the Appellate Division was final, because it dismissed the proceeding, and hence we have power to review their order although they had no power to review the order of the Special Term, as it was not final. In view of the latitude to be implied from the Domestic Delations .Law in cases of habeas corpus affecting the custody of children (§ 40), we should have been better satisfied if the action of the Special Term had been less rigorous. The welfare of the child is the chief end in view and under the circumstances her actual production, involving one ocean voyage if not-two, would have been a serious hardship to the child herself. A suitable guardian or custodian would have been necessary, yet no provision was made for expenses of any kind. As the proceeding must go before the Special Term again for suitable action, we venture to suggest, although we cannot now so decide, that the facts should be investigated somewhat before another order of the kind is made. As the matter now stands, however, we are compelled to reinstate the order of the Special Term, as the Appellate Division had no power to review or reverse it. The order appealed from should be reversed, but without costs. Culler, Oh. L, Edward T. Bartlett, Haight, Hiscogk and Chase, JL, concur; O’Brier, J., not voting. Order reversed.