Section 2015 of the Code contains a general provision for the allowance of a writ of habeas corpus to be made, “except in one of the cases specified in the next section.” The next section, to wit, section 2016, prescribes expressly as follows:
“A person is not entitled to either of the writs specified in the last section, in either of the following cases: * * * (2) Where he has been committed, •or is detained, by virtue of the final judgment or decree, of a competent tribunal of civil or criminal jurisdiction. * * *”
Section 2032 of the Code provides as follows:
“The court or judge must forthwith make a final order to remand the prisoner, if it appears that he is detained in custody for either of the following ■causes, and that the time for which he may legally be so detained has not expired: * * * (2) By virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction. * * *”
Chapter 602 of the Laws of 1886 conferred upon the police justice of Little Falls “all the jurisdiction, power, and authority * * * In all respects as are or may by law be vested in or required from justices of the peace of the town of Little Falls.” In People v. Protestant Episcopal House of Mercy, 128 N. Y. 185, 28 N. E. 473, Ruger, C. J., says:
“The Code of Civil Procedure provides that wffien it appears, among other things, that the prisoner is detained in custody ‘by virtue of the final judgment *736or decree of a competent tribunal of civil or criminal jurisdiction,’ and the-time for which he is required to be retained has not expired, the court must remand him. Section 2032. Section 2034 of the same Code enacts that the court or judge is prohibited in such case, on a return to the writ, from inquiring into the legality of any mandate, judgment, decree, or final order."
In a later part of the opinion, the learned chief judge says:
“We are of the opinion that the order of the judge was erroneous, and that, it having been established by the conceded facts that the prisoner was held under the final judgment of a competent tribunal of criminal jurisdiction under the express provisions of the Code, she should have been remanded.”
Nothing appeared before the county judge to indicate that Brown,, the police justice, did not have jurisdiction of the parties, and especially of the defendant, in the suit before him; nor did anything appear to indicate that the police justice did not have jurisdiction of the subject-matter.
In article 3, tit. 2, c. 19, of the Code, authority is given to a justice to grant an order for the arrest of the defendant. In the second subdivision of section 2895 of the Code, it is provided that an order of arrest shall not be granted except where the action is brought “to recover damages for a personal injury, of which a justice of the peace has jurisdiction; an injury to property, including the wrongful taldng, detention, or conversion of personal property.”
In People v. Norton, 76 Hun, 7, 27 N. Y. Supp. 851, it was said to be irregular to go into proof, before a county judge to a return of habeas corpus, except to traverse the return, and that:
“It is a general rule that a habeas corpus cannot be used to review trials before magistrates. If it appears that the magistrate had jurisdiction of the person and the subject-matter, and the mittimus shows upon its face these two facts, the writ will be dismissed.”
In Re Donohue, 1 Abb. N. C. 10, it was said:
“It is safe and better, when a judgment has been, rendered, which an express statute authorizes, to leave its review to the regular and more deliberate process of the higher courts than to make of every court and officer authorized to issue this writ a tribunal summarily to decide such grave and momentous questions. People v. Fancher, 2 Hun, 226.”
We are inclined to the opinion that it was the duty of the county judge, by virtue of section 2032 of the Code, to make an order to remand the prisoner,- as it appeared that he was detained in custody “by virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction,” and that it is not necessary upon, this appeal to consider the questions urged by the learned counsel for the respondent as to the nature and character of the complaint filed in the justice’s court. In respect to that, however, it may be suggested that great liberality is allowed in justices’ courts, and that the cases cited by him—Goodwin v. Griffis, 88 N. Y. 631, and Wood v. Henry, 40 N. Y. 124, and Austin v. Rawdon, 44 N. Y. 63—differ from the case in hand.
The foregoing views lead to the conclusion that an order should be made in this case similar to the one pronounced in People v„ Protestant Episcopal House of Mercy, supra.
Order reversed, and the defendant remanded to the custody of the sheriff of Herkimer county.
*737MARTIN, J.I am of the opinion that the action was for injury to property, and an execution against the person was authorized. X, therefore, concur in the result
MERWIN, J.I think it was a case for a body execution, and that the order should be reversed.