(dissenting). The relator was sentenced as a second offender on April 5, 1935, to Sing Sing prison for a definite term of six years. Later in that year he was transferred to an institution for defective delinquents at Napanoch as a mental defective and in 1938, he was transferred to Woodbourne Institution for Defective Delinquents and while there confined obtained a writ of habeas corpus.
The sole question here presented is whether section 440 of the Correction Law is unconstitutional, or, if constitutional, whether notice of and an opportunity to be heard upon an application for an order of further retention is required under the statute.
Section 440 of the Correction Law provides, in substance, that when the term of a person confined in Woodbourne or Napanoch has expired and in the opinion of the superintendent such person is a mental defective, the superintendent shall apply to a judge of a court of record to cause an examination to be made of such person by two qualified examiners to be designated by the judge. If the examiners are satisfied that such person is a mental defective they shall make a certificate to that effect and upon such certificate the superintendent shall apply to the judge for an order authorizing him to retain the prisoner at such institution. “ Such judge, if satisfied that such prisoner is a mental defective, shall issue an order of retention, and such superintendent shall thereupon retain the prisoner at the institution until discharged as provided by law. ”
Shortly before the expiration of relator’s imprisonment, the superintendent presented a petition to a proper judge setting forth that relator was mentally deficient. After an examination by qualified examiners, who certified that he was a mental defective, respondent superintendent applied „ for an order authorizing him to retain relator, which order was granted. *483No notice of such proceeding was given the relator, nor was he brought into court nor given any opportunity to be heard in his own behalf.
From a reading of the statute I think that notice and an opportunity to be heard may be implied. “ The expression [in the statute] ‘ such judge, is satisfied ’ imports a judicial hearing on this issue.” (Matter of Naylor, 284 N. Y. 188.) Such a proceeding as this carried on and concluded without notice and without a hearing may not be termed due process of law. (People ex rel. Ordway v. St. Saviour’s Sanitarium, 34 App. Div. 363.) Mental deficiency is not a disease but a condition. (Matter of Johnson v. Hoffman, 148 Misc. 766.) This relator was not an insane person in any sense of the word. He was retained in custody, not upon facts ascertained upon a hearing but on the certificate of medical examiners. He was given no opportunity to meet the charge that he was a mental defective. ■He had been committed to a State prison for a definite period for the crime of attempted robbery and by reason of the expiration of such sentence an order of retention provided by statute was necessary. In People ex rel. Barone v. Fox (202 N. Y. 616) the Appellate Division (144 App. Div. 611, 622, 626) was reversed upon the dissenting opinion of Clabke, J. The statute involved in that case was somewhat similar to the provisions contained in section 440 of the Correction Law. It was there held that such statute violates the provisions of article I, section 6, of the State Constitution and amendment XIV of the Constitution of the United States “ because it requires the magistrate to commit the prisoner upon the report of a non-judicial officer of the ascertainment of a non-traversable state of facts in an investigation made by him out of court. * * * A person deprived of liberty upon facts not ascertained upon a hearing is so deprived without due process of law.”
This relator was denied notice of the application for the retention order after his fixed term of imprisonment had expired and he was denied a hearing upon the question of his mental condition. An order of retention has been granted, which retention, incidentally, may result in incarceration for the period of relator’s life. Clearly, he was entitled to an opportunity to be heard, for “ unless there has been opportunity * * * to meet a charge, there is no due process of law.” (Hovey v. Elliott, 167 U. S. 409; People v. Henriques & Co., 267 N. Y. 402.)
It is conceded that had relator in the first instance been returned to Napanoch as a parole violator, no other proceeding *484would be necessary. (People ex rel. Romano v. Thayer, 229 App. Div. 687.) The fact remains, however, that he was sentenced in 1935 by the Bronx County court for a definite term of six years in Sing Sing prison. When that sentence expired the proceeding under section 440 of the Correction Law was definitely required. We are concerned, therefore, only with the question as to whether or not he was entitled to notice and a judicial hearing. To deny such notice and hearing • is to deprive him of his liberty without the due process of law guaranteed to him by the Constitution of this State.
The order appealed from should be affirmed.
1 Cbapser and Bliss, JJ., concur with Heffernan, J.; Schenck, J., dissents in opinion in which Hill, P. J., concurs.
Order reversed on the law, the writ of habeas corpus dismissed and relator remanded to the custody of the superintendent of Woodbourne Institution.