majority">Martin, P. J.

The appellant has appealed from an order directing him to furnish security in the sum of $50,000 for his appearance as a witness or be committed to the House for the Detention of Witnesses. This order was entered pursuant to the provisions of section 618-b of the Code of Criminal Procedure. It is an order of a judge of the Court of General Sessions and is in an action entitled, “ People of the State of New York on the Complaint of - against John Doe and Richard Roe.” It recites that the action referred to in the moving affidavit is “ now pending in this court.” It does not appear that any question was raised as to the pendency of the action at the time the order was signed. The order, therefore, is an order in a criminal action.

The right to appeal therefrom must be found in the Code of Criminal Procedure. In People v. Reed (276 N. Y. 5) the Court of Appeals pointed out that the right to appeal is entirely a matter of statute, a matter of legislative control. We find no provision for an appeal from an order entered in accordance with the provisions of section 618-b of the Code of Criminal Procedure.

The Appellate Division in the Second Department in People v. Doe (Re Rubenstein) (259 App. Div. 921) and People v. Doe (Re Workman) (Id. 1027) has specifically held that such an order is not appealable. With this conclusion we are in accord.

The order appealed from herein states:

“ It appearing to my satisfaction, upon the within affidavit that ■--[presumably Jacob Bernoff] is a necessary and material witness for the People in the action therein referred to now pending in this Court * * *.

“It is hereby ordered that the said Jacob Bernoff, etc., enter into a written undertaking with good and sufficient sureties in the sum of Fifty Thousand Dollars for his appearance as a witness against the said defendant * * *.”

The affidavit referred to is an affidavit of an assistant district attorney of New York county. It reveals the difficulty that the *506district attorney has had in apprehending Bernoff who has a criminal record and who has been intimately associated with an alleged widespread “ racket ” in the milk industry beginning in the year 1935 and extending to the present day. This affidavit is entitled “ Court of General Sessions in and for the County of New York. Offense — Extortion and Conspiracy. People of the State of New York on the Complaint of--against John Doe and Richard Roe.”

Section 618-b of the Code of Criminal Procedure provides: “Whenever a judge of a court of record in this State is satisfied, by proof on oath, that a person residing or being in this State is a necessary and material witness for the People in a criminal action or proceeding pending in any of the courts of this State, he may * * * order such person to enter into a written undertaking * * *.”

The requisite fact which must be present before an individual may be held in bail as a necessary and material witness for the People is that a criminal action or proceeding is pending in some court of this State. In the absence of such a fact, the fixing of bail and the alternative imprisonment are without warrant in law. Jurisdiction to hold an individual who is not accused of any crime and who is not a material witness in any criminal action pending in any court of the State, is not granted under the laws and Constitution of this State to any man or any court. An order holding any person under those conditions is without authority and amounts to an imprisonment which can be and should be corrected by a habeas corpus order.

Appeals are decided on the record which is submitted. Were the order appealable, on the record before us the order would have to be affirmed. There is nothing to show that no criminal action or proceeding is pending. To find the alleged error, one must consult the briefs and the statements therein which cannot be supported, as is required, by folio number or by reference to any proceedings taken before the judge at General Sessions. This is enough to establish the lack of utility in permitting an appeal from this type of order. The order would necessarily have to be affirmed if it were considered on the merits shown by the -record. Such a result would leave the fundamental question of the jurisdiction of the justice to make the order to be considered at some other' place on a writ of habeas corpus.

The Appellate Division in the Fourth Department considered-appeals from orders which were entered denying motions to vacate commitment orders similar to .the commitment order under review. (Matter of Prestigiacomo, 234 App. Div. 300; Matter of DiPiazzi, Id. 302.) The record on a motion to vacate a commitment order *507would show the error. The Fourth Department had such records on which it reached the conclusion that the County Court judge had exceeded his authority in fixing bail to hold witnesses when there was no criminal proceeding pending in any court of the State. The question whether such orders, namely, denials of motions to vacate commitment orders, were appealable was urged before the justices of the Fourth Department and they decided that such orders were appealable. It is unnecessary to consider the merits of that decision for the reason that the record before us does not present a similar order or the same question.

If such an order as the present one were treated as appealable and if the record contained the necessary facts to show its irregularity and illegality, the time necessary to print a record, perfect an appeal and argue the case before an appellate court would defeat in most cases the right which the appellant was attempting to assert. There are times when appellate courts are necessarily in recess. There are also many difficulties preventing prisoners of limited means from promptly printing a record, assuming that the record would establish reversible error. Meanwhile the illegal imprisonment continues and the constitutional guaranties of the individual are being reduced to a nullity. In short, the right of appeal even from an order denying a motion to vacate an irregular commitment is a right which in most cases would not result in an adequate remedy because the imprisonment would continue until the determination of the appeal.

On the other hand, a habeas corpus order gives a prompt remedy and an adequate protection forthwith. As pointed out in People ex rel. Ditchik v. Sheriff of County of Kings (171 Misc. 248): “ The statute provides for a hearing. The court may retain control of the situation by the form of the order. There is no definite commitment for a term. At any time an inquiry as to the detention may be instigated by the court. The judge before whom the application is made must be ‘ satisfied ’ with the proof. Those are protective features of the law against oppressive use of the power.’ The writ of habeas corpus, sued out again and again if necessary, is always available, and the hearing of that application may be had before a different judge each time. The safeguards that surround the statute brook no untoward abuses and permit no oppressive measures. * *

It is necessary, in view of the dissenting opinion, to state that a proceeding to hold an individual as a material witness when it is founded on a case actually pending is not civil in character. It is a proceeding authorized by the Code of Criminal Procedure. Its title meets the exception set forth in section 6 of the Civil Practice *508Act and the definition contained in section 6 of the Code of Criminal Procedure. There is not the slightest reason to assume that the framers of the Civil Practice Act had any idea that a proceeding under section 618-b would be deemed a special proceeding within the meaning of that act. The Civil Practice Act was passed by chapter 925 of the Laws of 1920. The Code of Criminal Procedure has been in existence since 1881. Section 618-b was first passed by chapter 437 of the Laws of 1904, and amended to its present form as of September 1, 1915 (Laws of 1915, chap. 566). Furthermore, an order fixing bail is not a final order. This court recently held that such orders are not appealable. The court said that in so far as such orders violate constitutional guaranties against excessive bail, relief may be granted under a writ of habeas corpus. (See People ex rel. Deliz v. Warden of City Prison, 260 App. Div. 155.)

If part of such an order is to be so considered, the whole of it should be, if for no other reason than that the practice should be uniform and that an individual may know his rights.

The appeal should be dismissed.

Townley and Glennon, JJ., concur; O’Malley and Untermyer, JJ., dissent.

Citation profile

Relationships

How this case has been treated — in progress