Respondent claims that under the terms of the condition attached to the commutation, he is only required to serve that portion of the •minimum of the original sentence which he did not serve by reason of the commutation and his release on parole thereunder, and that the Board of Parole had authority to consider his application, even though he had violated the condition (Prison Law, §§ 214, 217, as amd. by Laws of 1922, chap. 297, and Laws of 1919, chap. 198), while appellants take the position that it was the intention of the Governor to extend the condition to the time fixed as the maximum limit of the sentence, and that to parole respondent under the circumstances would be an unwarranted interference with the power of the Governor to grant commutations upon such conditions and with such restrictions and limitations as he may think proper. (Const, art. 4, § 5.)
The terms of the condition relate to “ any felony committed during the period between the date of his discharge by reason *215hereof and the date of the expiration of the full term hereby commuted.” As said by the court, construing a similar condition, in People ex rel. Brackett v. Kaiser (209 App. Div. 722, 725): “ There was one sentence with a minimum and maximum limitation (See Penal Law, § 2189) within which limitations the sentence might be terminated by the Board of Parole and it was this entire sentence with its limitations and possibilities which was commuted and not the minimum part alone. The sentence was an entirety and the commutation thereof with its condition attached to the entire sentence and not to a part thereof. We cannot well give effect to the words ‘ full term ’ by any other process of reasoning.” This being the purport of the condition, we are brought to a consideration of the question as to whether, notwithstanding its violation, the Board still has authority to parole plaintiff, who urges that the purpose of the provisions of the Prison Law relating to parole is to permit a first offender to serve the maximum term of his sentence outside of the prison walls, but if he violates the condition of his parole, he is returned to prison to serve his maxmum term “ unless sooner released on parole or absolutely discharged ” by the Board of Parole. (Prison Law, § 217.) While such may be the purpose of the law, the section does seem to indicate that a prisoner once paroled by the Board under the provisions of section 214, and thereafter returned for violation of his parole, may, in the discretion of the Board, be granted further parole, while held for a period equal to the unexpired maximum term of his sentence. This provision, however, has no application to a case where the prisoner has been paroled pursuant to a commutation granted by the Governor upon conditions which, if violated, subject the offender to the imposition of penalties prescribed in the commutation, and I am of the opinion that the Board is, under the circumstances, without authority to interfere with the power of the Governor to grant commutations upon such conditions as he may think proper, and that plaintiff must be held for a period equal to the unexpired maximum of the term of his sentence, without commutation.
The order should, therefore, be reversed on the law and the facts, and the motion denied.
Kelly, P. J., Jay'cox, Manning and Kelby, JJ., concur.
Order reversed on the law and the facts, and motion denied.