(dissenting). Some time after April 29, 1936, and before September 3, 1936, the parole commission, having before it all the facts concerning the relator’s past record, fixed marks which if earned would make thirty-three months the minimum period to be served by relator before he was eligible for parole. This fixation was approved by the sentencing judge. The marks fixed have been earned.
In 1934 the parole commission, pursuant to the power conferred upon it by law, adopted a resolution, which is still in effect, providing that all prisoners whose marks are fixed and whose behavior was good would earn a diminution of their period of confinement of five days off in each month of the time fixed. It is conceded that relator’s conduct was such that he earned this time off. Crediting five days off in each month for good behavior against the thirty-three months, the relator was eligible for parole in August, 1938. The parole commission, in accordance with its custom, considered his case a month before the minimum period expired, i. e., in July, 1938. It then reversed its prior decision and determined that relator was not a fit subject for parole. In doing so the commission appears to have acted on further consideration of relator’s record before incarceration and decided not to take the responsibility of paroling him. In doing this, in my opinion, it acted improperly. The minimum time fixed of thirty-three months was a decision of the question as to when the date of eligibility for parole would arrive. This was approved by the sentencing judge. The parole commission had no authority to change this decision to the prisoner’s detriment, unless in doing so it acted on some misconduct of the prisoner or other good ground which occurred after its fixation of the period to be served. No such ground existed in this case. The commission admits the marks assigned were earned, but says that fixation of minimum time was tentative and merely meant that the question of parole would be considered again when the minimum sentence was served. I think that the fixation was more than a promise to consider the question of parole again.
*798However, even if we assume that the commission was not compelled to accept parole, but might reconsider its determination to do so, at least it is clear that its resolution of 1934, awarding time off for good behavior, was not tentative in any way. It provided that every inmate, in case his conduct was good, was to receive a certain diminution of sentence in each month during the period of confinement. The commission should have rescinded this resolution or applied it without exception in each case where conduct was good.
I cannot agree that the language of the resolution may be construed to mean that the commission might award an earlier parole at the rate of five days a month if the conduct of a prisoner was good. By its terms it definitely promised a commutation for good behavior. Nor does the resolution necessarily conflict with the statutory requirement for approval by the sentencing judge for an earlier parole.
In any event,- in the present case, the maximum period for which incarceration might have continued (thirty-six months), less the time off for good behavior under the resolution, would have resulted in relator’s sentence expiring before Special Term granted his release.
Under the circumstances the order appealed from was correct and should be affirmed.
Order reversed, writ dismissed, and relator remanded to the New York County Penitentiary there to be dealt with according to law.