We are not at all in doubt as to the rules of law applicable to cases of this kind, and there is no division of opinion in the court as to those rules. If the defendant in proceedings for a writ of habeas corpus has the custody or control of the person whose release is sought, so that it is possible, for him to obey the order of the court *384with respect to that person, the court has jurisdiction not only to issue the writ, but to make a determination in the matter and to require the delivery of such person; and this can be done, although it appears* that the person whose release is sought is without the State; but a writ of habeas corpus is not intended to punish the defendant for improperly depriving a citizen of his liberty, or for illegally deporting him out of the State: That is to be done by the criminal law. * The sole object of the writ is to release from imprisonment a person who is unlawfully restrained from his liberty, ■ or in the Case of a child to take possession of it in order to deliver it to the person who is entitled to its custody. The writ existed at common law, but the proceedings of the court with respect to it are regulated by statute, and the courts must be governed by that statute. Section 2015 of the Code of Civil Procedure provides that a person impi’isoned or restrained of his liberty “ within the State ” is entitled to a writ of habeas corpus. That has been extended by the courts, and properly so, to authorize the court to require the release of a person who is not within the State if the defendant to whom the writ is, addressed has the power to produce him, and subject him to the power of the court.
Even if it-should appear in the petition for the. writ that the person whose release is sought. is without the State, nevertheless, the court has jurisdiction to issue the writ if the facts show that the person to whom it is directed may have the control of the person confined, or may be able to obey the command of the court by producing him. In such a case when it appears that the person to whom the writ is directed may be able to produce the imprisoned person-the writ ought to issue, and if for any reason the defendant is not able to obey it that fact should be made to appear by the return or the proof, and when it does appear, and not until then, should the writ be vacated. • .
A lthough it may appear from the return or the proof that the person to whom, the writ is directed, having had the custody of him for whose release the writ is issued, has connived at and assisted in removing that person out of the jurisdiction of the court, no order can be made requiring his production unless it should appear'that such person has yet so much custody and control as that he would be able to obey the order, but if it appears affirmatively that it is *385physically impossible for him to obey it, the writ must be vacated, and the petitioner remitted to his remedy in another State, and the defendant must be punished by the criminal law. (Code Civ. Proc. ;§ 2052; Matter of Jackson, 15 Mich. 417; Queen v. Barnardo, L. R. [24 Q. B. Div.] 283.)
In view of these rules of law, the only question presented in this ■case is upon the facts. The writ was issued; the defendant made a return; it supported that return by affidavits ; it claims that those affidavits show that before the writ was issued, and before there could have been any idea that a writ would be applied for, these children were bound out to persons in Illinois over whom this court has no jurisdiction, over whom the defendant has no power, and that these persons refuse to produce the children or send them back into this ¡State. The only question is whether these facts appearing they answer the writ, and whether the father should not be remitted to his writ of habeas corpus in Illinois against the. persons who controlled and still control the custody of the children..
It appears that the two visitors of the defendant called upon the persons in Illinois who had charge of these children and asked that they should be sent back to Mew York and this request was positively refused ; that James Billotti, the oldest son, stated that he absolutely refused to go back ; that the person to whom James Billotti was indentured refused to give' him up and stated that if the indenture should be canceled in any other way than by mutual consent he should demand an indemnity of $200. Just how it could be canceled except by mutual consent I am not aware, but his affidavit contains no suggestion that he would give up the child at the request of the Juvenile Asylum or anybody else. The same thing may be said of the affidavit of Lawhead, to whom Annie Billotti was indentured, and the affidavit of McIntosh, to whom Bosie Billotti was indentured. It is quite evident that these children did not want to come back and that the persons with whom they were indentured intended to keep them. . It seems to me that it is indisputable that the Mew York Juvenile Asylum. has no control or custody of these children in any way, and that an order addressed to that society to produce them would be mere l>rutum fulmén, and the issuance of the order could only lay the asylum open to a charge *386of contempt of court for refusing to obey an order which it must have been known at the time it was issued could not be obeyed.
For these reasons the order should be reversed.
Yan'Brunt, P. J., and MoEawhlin, J., concurred; Patterson, and O’Brien, JJ., dissented.