The relator was arrested in Ulster County as a fugitive from justice upon a charge of obtaining $1,500 on false pretenses in Connecticut. On this charge he was committed to the Ulster County jail under an order of commitment of the County Judge of that county and while in jail he escaped.
*126The New York statute ■ (Penal Law, § 1694) provides that such an escape is a felony if tire custody “ is upon ” a charge, arrest or commitment 16 for a felony ’ ’ and otherwise is a misdemeanor.
The obtaining of money by false pretenses in Connecticut by the statute of that State (Connecticut General Statutes [1949 Bevision], § 8696) as we here refer to it from the briefs before us, does not in itself or in terms describe the crime either as a felony or as a misdemeanor. The maximum punishment may extend to an imprisonment of not more than three years.
The relator after his escape from the Ulster jail was indicted in that county under an indictment which alleged the escape was a felony, and while the text of the indictment is not before us we must presume that it Sufficiently alleged the felonious escape, since no question was or is raised about its sufficiency in this respect.
To this allegation relator pleaded guilty- and was sentenced to prison. The court at Special Term has discharged him on the ground there was. no jurisdiction to entertain this plea because under Connecticut law the offense for which relator had been committed to jail was not ‘ ‘ a felony ’ ’ within the intent of the New York statute on escapes from custody.
It would be a departure from established New York practice to reach the question here by habeas corpus. The relator was indicted by a Grand Jury in a court having jurisdiction of the crime and of the person of the relator and to the accusation that he had escaped from such a custody as to constitute a felony under section 1694 of the Penal Law, he pleaded guilty.
If the true fact was that he had never been arrested or never been in custody or had not escaped from custody, the question would not be open to inquiry by habeas corpus. What the Connecticut law amounted to for the purpose of determining the gravity of the escape in New York was a question of fact and not of law.
Whether there was a charge in Connecticut and whether it was there a felony or misdemeanor were both questions for inquiry in New York on the indictment for the New York crime. If by the plea of guilty before a court having jurisdiction, relator admitted these things, habeas corpus could not possibly lie to hold there was no jurisdiction.
It may be that there was a mistake in the facts pleaded and admitted by the relator and in evaluating the Connecticut charge *127as a felony there. If this was so, the relator may apply to the court which entered the judgment to vacate it, but this is by invoking the jurisdiction of the court, not by denying its jurisdiction.
In People v. Olah (300 N. Y. 96) the appeal was a direct appeal from the judgment by which the appellant was sentenced October 15, 1948 as a second offender in the General Sessions and an appeal from a second order, November 9, 1948 on a motion to vacate the judgment. (See statement in the Appellate Division, 275 App. Div. 319.)
The Connecticut law might be proved as a fact; or the court might take judicial notice of it without proof, but what the Connecticut law meant or said could never become the test of a New York court’s jurisdiction. The Connecticut statute may have been mistakenly interpreted, but the New York court had the power (and the jurisdiction) to make a mistake of fact not reviewable by habeas corpus.
The “ plea ” considered in People v. Olah was not the plea in the New York court, but the effect as a matter of New York law of the plea in the New Jersey court to a-crime which would not be regarded in New York as a felony (300 N. Y. 96, 98, supra).
The order in habeas corpus should be reversed and the petition dismissed but without prejudice to an application, if relator is so advised, to the County Court of Ulster County addressed to the judgment of conviction.