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 a judgment, decree, or final order.

$ 2017. How and to whom application for habeas or certiorari made. Application for the writ must be made, by a written petition, signed, either by the person for whose relief it is intended, or by some person is his behalf, to either of the following courts or officers:

1. The supreme court, at a special term or the appellate division thereof, where the prisoner is detained within the judicial district within which the term is held.

2. A justice of the supreme court, in any part of the state.

3. An officer authorized to perform the duties of a justice of the supreme court at chambers, being or residing within the county, where the prisoner is detained; or, if there is no such officer within that city or county, capable of acting, or, if all those who are capable of acting and authorized to grant the writ, are absent, or have refused to grant it, then to an officer, authorized to perform those duties, residing in an adjoining county. [AM'D BY CH. 946 OF 1895. In effect Jan. 1, 1896.]

§ 2018. Application in another county; proof required. Where application for either writ is made as prescribed in subdivision third of the last section, without the county where the prisoner is detained, the officer must require proof, by the oath of the person applying, or by other sufficient evidence, of the facts which authorize him to act as therein prescribed; and if a judge in that county, authorized to grant the writ, is said to be incapable of acting, the cause of the incapacity must be specially set forth. If such proof is not produced, the application must be denied.

FUL-2017

§ 2019. Contents of petition. The petition must be verified by the oath, of the petitioner, to the effect that he believes it to be true; and must state, 207

in substance:

1. That the person in whose behalf the writ is applied for, is imprisoned, or restrained in his liberty; the place where, unless it is unknown, and the officer or person by whom, he is so imprisoned or restrained, naming both parties, if their names are known, and describing either party whose name is unknown.

2. That he has not been committed, and is not detained, by virtue of any judgment, decree, final order, or process, specified in section 2016 of this act. 3. The cause or pretense of the imprisonment or restraint, according to the best knowledge and belief of the petitioner.

4. If the imprisonment or restraint is by virtue of a mandate, a copy thereof must be annexed to the petition; unless the petitioner avers, either, that by reason of the removal or concealment of the prisoner before the application, a demand of such a copy could not be made, or that such a demand was made, and the legal fees for the copy were tendered to the officer or other person, having the prisoner in his custody, and that the copy was refused.

5. If the imprisonment is alleged to be illegal, the petition must state in what the alleged illegality consists.

6. It must specify whether the petitioner applies for the writ of habeas corpus, or for the writ of certiorari.

§ 2020. When writ must be granted; penalty for refusing. A court or a judge, authorized to grant either writ, must grant it without delay, whenever a petition therefor is presented, as prescribed in the foregoing

sections of this article, unless it appears, from the petition itself, or the documents annexed thereto, that the petitioner is prohibited by law from prosecuting the writ. For a violation of this section, a judge, or, if the application was made to a court, each member of the court, who assents to the violation, forfeits to the prisoner one thousand dollars, to be recovered by an action in his name, or in the name of the petitioner to his use.

§ 2021. Form of writ of habeas corpus. The writ of habeas corpus, issued as prescribed in this article, must be substantially in the following form, the blanks being properly filled up: "The people of the State of New York, to the sheriff of, et cetera, (or "to A. B."): "We command you, that you have the body of C. D., by you imprisoned and detained, as it is said, together with the time and cause of such imprisonment and detention, by whatsoever name the said C. D. is called or charged, before "the supreme court, at a special" term or term of the appellate division thereof, to be held," or "E. F., justice of the supreme court," or otherwise, as the case may be), on " (or, "immediately after the receipt of this writ"), "to do and receive what shall then and there be considered, concerning the said C. D. And have you then there this writ. • Witness, one of the justices" (or "judges") "of the said court" (or "county judge," or otherwise, as the case may be), "the day of , in the year eighteen hundred and [AM'D BY CH. 946 or 1895. In effect Jan. 1, 1896.]

"at

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on

§ 2022. Form of writ of certiorari. The writ of certiorari, issued as prescribed in this article, must be substantially in the following form, the blanks being properly filled up: "The People of the State of New York, to the Sheriff of," et cetera, (or "to A. B."): "We command you, that you certify fully and at large, to ("the supreme court, at a special" term or term of the appellate division thereof, to be held," or "E. F., justice of the supreme court," or otherwise, (as the case may be), "at (or immediately after the receipt of this writ)," "the day and cause of the imprisonment of C. D., by you detained, as it is said, by whatsoever name she said C. D. is called or charged. And have you then there this writ. "Witness, one of the justices (or "judges") "of the said court" (or county judge," or otherwise, as the case may be), "the day of in the year eighteen hundred and [AM'D BY CH. 946 or 1895. In effect Jan. 1, 1896.]

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§ 2023. When writ returnable before another judge. If application for either writ is made to the supreme court, or to a justice thereof, in a county other than that where the person is imprisoned or confined, the writ may be made returnable, in its or his discretion, before any judge authorized to grant it, in the county of the imprisonment or confinement.

§ 2024. When writ sufficient. The writ of habeas corpus or the writ of certiorari shall not be disobeyed for any defect of form, and particularly in either of the following cases:

1. If the person having the custody of the prisoner, is designated, either by his name of office, if he has one, or by his own name; or, if both names are unknown or uncertain, by an assumed appellation. Any person, upon whom the writ is served, is deemed to be the person to whom it is directed, although it is directed to him by a wrong name or description, or to another person.

2. If the prisoner directed to be produced, is designated by name, or otherwise described in any way so as to be identified as the person intended.

§ 2025. When writ to issue without application. Where a justice of the supreme court, in court or out of court, has evidence, in a judicial proceeding taken before him, that any person is illegally imprisoned or restrained in his liberty, within the State; or where any other judge, authorized by this article to grant the writs, has evidence, in like manner, that any person is thus imprisoned or restrained, within the county where the judge resides; he must issue a writ of habeas corpus or a writ of certiorari, for the relief of that person, although no application therefor has been made.

§ 2026. Return; its contents. The person upon whom either writ has been duly served, must state, plainly and unequivocally, in his return:

1. Whether or not, at the time when the writ was served, or at any time theretofore or thereafter, he had in his custody, or under his power or restraint, the person for whose relief the writ was issued.

2. If he so had that person, when the writ was served, and still has him, the authority and true cause of the imprisonment or restraint, setting it forth at length. If the prisoner is detained by virtue of a mandate, or other written authority, a copy thereof must be annexed to the return, and, upon the return of the writ, the original must be produced, and exhibited to the court or judge.

3. If he so had the prisoner at any time, but has transferred the custody or restraint of him to another, the return must conform to the return required by the second subdivision of this section, except that the substance of the mandate or other written authority may be given, if the original is no longer in his hands; and that the return must state particularly to whom, at what time, for what cause, and by what authority, the transfer was made.

The return must be signed by the person making it, and, unless he is a sworn public officer, and makes his return in his official capacity, it must be verified by his oath.

§ 2027. Habeas corpus; body of prisoner to be produced, unless, etc. The person, upon whom a writ of habeas corpus has been duly served, must also bring up the body of the prisoner in his custody, according to the command of the writ; unless he states, in his return, that the prisoner is so sick or infirm, that the production of him would endanger his life or his health.

§ 2028. Proceedings on disobedience of writ. Where a person, who has been duly served with either writ, refuses or neglects, without sufficient cause shown by him, fully to obey it, as prescribed in the last two sections, the court or judge, before which or whom it is made returnable, upon proof of the due service thereof, must forthwith issue a warrant of attachment, directed generally to the sheriff of any county where the delinquent may be found, or if the delinquent is a sheriff, to any coroner of his county, or to a particular person specially appointed to execute the warrant, and designated therein; commanding such officer or other person forthwith to apprehend the delinquent, and bring him before the court or judge. Upon the delinquent being so brought up, an order must be made, committing him to close custody in the jail of the county in which the court or judge is; or, if he is a sheriff, in the jail of a county, other than his own, designated in the order; and, in either case, without being allowed the liberties of the jail. The order must direct that he stand committed, until he makes return to the writ, and complies with any order, which may be made by the court or judge in relation to the person for whose relief the writ was issued.

§ 2029. Id.; precept to bring up prisoner. The court or judge may also, in its or his discretion, at the time when the warrant of attachment is issued, or afterwards, issue a precept to the sheriff, coroner, or other person, to whom the warrant is directed, commanding him forthwith to bring before the court or judge the person for whose benefit the writ was granted, who must thereafter remain in the custody of the officer or person executing the precept, until discharged, bailed, or remanded, as the court or judge directs. $2030. Id.; power of county may be called. The sheriff, coroner, or other person, to whom a warrant of attachment or precept is directed, as prescribed in either of the last two sections, may, in the execution thereof, call to his aid the power of the county, as a sheriff may do, in the execution of a mandate issued from a court of record.

§ 2031. Proceedings on return of habeas corpus. The court or judge, before which or whom a prisoner is brought by virtue of a writ of habeas corpus, issued as prescribed in this article, must, immediately after the return of the writ, examine into the facts alleged in the return, and into the cause of the imprisonment or restraint of the prisoner; and must make a final order to discharge him therefrom, if no lawful cause for the imprisonment or restraint, or for the continuance thereof, is shown; whether the same was upon a commitment for an actual or supposed criminal matter, or for some other cause.

§ 2032. When prisoner to be remanded. The court or judge must forthwith make a final order to remand the prisoner, if it appears that he is detained in custody for either of the following causes, and that the time for which he may legally be so detained has not expired:

1. By virtue of a mandate issued by a court or a judge of the United States, in a case where such courts or judges have exclusive jurisdiction. 2. 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 a judgment, decree, or final order.

3. For a criminal contempt, defined in section 8 of this act, and specially and plainly charged in a commitment, made by a court, officer, or body, having authority to commit for the contempt so charged.

§ 2033. When to be discharged in civil cases. If it appears upon the return, that the prisoner is in custody by virtue of a mandate in a civil cause, he can be discharged, only in one of the following cases:

1. Where the jurisdiction of the court which, or of the officer who, issued the mandate, has been exceeded, either as to matter, place, sum or person. 2. Where, although the original imprisonment was lawful, yet by some act, omission, or event, which has taken place afterwards, the prisoner has become entitled to be discharged.

3. Where the mandate is defective in a matter of substance required by law, rendering it void.

4. Where the mandate, although in proper form, was issued in a case not allowed by law.

5. Where the person, having the custody of the prisoner under the mandate, is not the person empowered by law to detain him.

6. Where the mandate is not authorized by a judgment, decree, or order of a court, or by a provision of law.

$2034. The last section qualified. But a court or judge, upon the return of a writ issued as prescribed in this article, shall not inquire into

the legality or justice of any mandate, judgment, decree, or final order, specified in the last section but one, except as therein stated.

§ 2035. Proceedings on irregular commitment. If it appears that the prisoner has been legally committed for a criminal offence, or if he appears, by the testimony offered with the return, or upon the hearing thereof, to be guilty of such an offence, although the commitment is irregular, the court or judge, before which or whom he is brought, must forthwith make a final order, to discharge him upon his giving bail, if the case is bailable; or, if it is not bailable, to remand him. Where bail is given pursuant to an order, made as prescribed in this section, the proceedings are the same, as upon the return to a writ of certiorari, where it appears that the prisoner is entitled to be bailed.

§ 2036. Id.; when prisoner may be committed to another officer. Where a prisoner is not entitled to his discharge, and is not bailed, he must be remanded to the custody, or placed under the restraint from which he was taken, unless the person, in whose custody or under whose restraint he was, is not lawfully entitled thereto; in which case, the order remanding him must commit him to the custody of the officer or person so entitled.

§ 2037. Custody of prisoner pending the proceedings. Pending the proceedings, and before a final order is made upon the return, the court or judge, before which or whom the prisoner is brought, may either commit him to the custody of the sheriff of the county wherein the proceedings are pending, or place him in such care or custody, as his age and other circumstances require.

§ 2038. Notice to person interested in detention. Where it appears, from the return to either writ, that the prisoner is in custody by virtue of a mandate, an order for his discharge shall not be made, until notice of the time when, and the place where, the writ is returnable, or to which the hearing has been adjourned, as the case may be, has been either personally served, eight days previously, or given in such other manner, and for such previous length of time, as the court or judge prescribes, as follows:

1. Where the mandate was issued or made in a civil action or special proceeding, to the person who has an interest in continuing the imprisonment or restraint, or his attorney.

2. In every other case, to the district attorney of the county, within which the prisoner was detained, at the time when the writ was served.

3. For the purpose of an appeal, the person to whom notice is given, as prescribed in the first subdivision of this section, becomes a party to the special proceeding.

§ 2039. Prisoner may controvert return; proofs thereupon. A prisoner, produced upon the return of a writ of habeas corpus, may, under oath, deny any material allegation of the return, or make any allegation of fact, showing either that his imprisonment or detention is unlawful, or that he is entitled to his discharge. Thereupon the court or judge must proceed, in a summary way, to hear the evidence, produced in support of or against the imprisonment or detention, and to dispose of the prisoner as the justice of the case requires.

§ 2040. Proceedings upon sickness, etc., of prisoner. Where the return to a writ of habeas corpus states that the prisoner is so sick or infirm, that the production of him would endanger his life or health, and the return is otherwise sufficient, the court or judge, if satisfied of the truth of that statement, must decide upon the return, and dispose of the matter, as if a writ of certiorari had been issued.