The Correction Law, as construed by the courts, is the source of the powers of the Board of Parole. ‘ ‘ The action of the board of parole in releasing prisoners shall be deemed a judicial function and shall not be. reviewable if done according to law ” (Correction Law, § 212). Concerning the reasons for release, it is indicated that a prisoner is not to be released as a reward for good conduct or the efficient performance' of duties, “ but only if the board, of parole is of opinion that there is reasonable probability that, if such prisoner is released, he will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society ” (§ 213). Petitioner-respondent has-been several times charged with criminal conduct in connection with efforts to obtain Civil Service positions for proteges and students. He was convicted on such charge by his plea of guilty on June 28, 1940, committed to Sing Sing Prison on July 1, 1940, under an indeterminate sentence of not less than, two nor more than four years. He became eligible for parole on October 30, 1941. On September 16, 1941, the Parole Board refused to grant parole and decided that he should serve his maximum term, less compensation. On December 30, 1940, seven months after he entered prison, and nine months before he was eligible for parole, Commissioner Bates of the Board of Parole wrote the other members concerning the petitioner: “ Anybody who has ever had anything to do with the difficulties of administering public service can have nothing but contempt for this individual who made money by promising people Civil *99Service jobs, who boasted that he had all the answers, and in addition to that, took money to * bribe ’ public officials. He modestly admits that as to the Civil Service Institute, ‘ I was the school.’ * * * This was a bare-faced and deliberate attempt to pollute the Civil Service on a wholesale basis. Teaching hundreds of men and women how to trick their way into public service, even to inducing them to believe that a bribe was necessary to get appointed. I would be glad to vote to hold this man for M. L. C. (Maximum less Compensation).”
It was within the province of the judge who received the plea of guilty to determine the length of the sentence. Thereunder petitioner was eligible to parole after service of sixteen months. It was then the duty of the Parole Board to parole him if in their opinion there was reasonable probability that he would live and remain at liberty without violating the law, and that his release would not be incompatible with the welfare of society. It might seem that a commissioner was not acting in accordance with section 213 of the Correction Law earlier quoted, who determined because of the nature of the crime that petitioner might not be paroled at any time until the full term had been served less statutory “ compensation ”. However, our court of last resort has said: “ There are no statutory limitations upon the power of the Board upon due consideration of such matters, in its absolute discretion to refuse to release any prisoner upon parole.” (Matter of Hines v. State Board of Parole, 293 N. Y. 254, 258.) In an earlier part of the opinion it is stated: “ The Board is to consider the prisoner’s attitude towards society, towards the judge who sentenced him, towards the district attorney who convicted him and towards the policeman who arrested him and how the prisoner regards the crime for which he is imprisoned and his previous criminal career.”
Recognizing the power of the court to construe the Correction Law, I concur for reversal.
Heffernan, Brewster and Lawrence, JJ., concur with Foster, J.; Hill, P. J., concurs in a separate memorandum.
Order appealed from reversed on the law and facts, without costs, and petitioner remanded to custody.