(dissenting). I concur in the decision in so far as it reverses the order of the Special Term and vote to grant petitioner’s application to be returned to the County Court for the imposition of a proper sentence.
I concur in the opinion in so far as it holds that the sentence previously imposed was illegal. I do not, however, concur in that portion which holds that two sentences should have been imposed —■ one consisting of the punishment for the felony itself and the other for being armed. The statutes contemplate but one sentence, which should have been indeterminate, with a minimum of twenty years and the maximum of any term from twenty years to life. The minimum of this sentence is made up of the punishment prescribed for the felony of which petitioner was convicted and by an additional five years for being armed, all of which must be imposed in one sentence.
I also dissent from the decision in so far as it directs that the petitioner be produced before this court for sentence. This is a proceeding in the nature of mandamus to compel the County Court of Tioga county to impose a proper sentence. The appeal now *588pending before us is from an order of the Special Term of the Supreme Court and is not an appeal from a judgment in a criminal action, consequently there is no authority for this court to now impose a proper sentence as on an appeal from a judgment in a criminal action.
Order denying application reversed, on the law and facts, and ' an order granted directing the warden of Clinton State Prison at Dannemora, N. Y., to produce petitioner before this court on July 1, 1940, at two o’clock in the afternoon, so that a proper sentence may be pronounced. [See 259 App. Div. 1116.]