(dissenting). I am constrained to dissent from the decision about to be made. I believe that the petitioner was given the full benefit by the prison authorities of the provisions of chapter 473 of the Laws of 1960, repealing section 219 of the *226Correction Law and inserting a new section 219 in its place. The decision of the majority gives the petitioner an additional benefit which I believe has no sanction in a reasonable construction of the amendatory statute.
The petitioner was sentenced on April 18, 1949, to a term of 2 to 10 years. The petitioner was released on parole on May 16, 1950, owing 8 years, 6 months and 14 days. He was declared delinquent on August 30, 1955, because of the commission of a felony in New York State while on parole and he was returned to prison on November 30, 1955. Under section 219 of the Correction Law, as it then read, the petitioner was required to serve “ the portion remaining of the maximum of the sentence on which he was released on parole from the time of such release on parole to the expiration of such maximum ”, before beginning to serve the new sentence of 5 to 10 years imposed for the felony committed while on parole. However, a proviso had been added to section 219 by chapter 518 of the Laws of 1954, which authorized the Parole Board to permit a prisoner who had served 5 years of delinquent time under section 219 “ to serve a portion of his remaining delinquent time concurrently with the new sentence imposed upon him ”. Section 219 was further amended by chapter 436 of the Laws of 1957 so as to provide generally that after a prisoner had served 5.years of delinquent time, he would become subject to the jurisdiction of the Board of Parole “ as to his remaining delinquent time ”.
Section 219 of the Correction Law was repealed by chapter 473 of the Lav/s of 1960, effective July 1, 1960, and a new section bearing the same number was adopted, eliminating the mandatory requirement of service of delinquent time in the case of a prisoner who had committed a crime while on parole and providing instead that the requirement of the service of delinquent time was discretionary with the Parole Board and that in any event the delinquent time shoald be “ calculated as provided in ” section 218 of the Correction Law. Under section 218, the Board of Parole is authorized to decide how much of the balance of the maximum term under the original sentence should be required to be served and furthermore the maximum delinquent time must be computed from the date of the declaration of delinquency and not from the date of release on parole.
Section 5 of the session law of 1960 which enacted the new section 219 provided: 1 ‘ The amendments made by this act shall apply to all prisoners serving delinquent time on the effective date of this act for a felony committed in this state or for a crime committed under the laws of another state, government, or country which if committed in this state would he a felony ”. *227The Board of Parole and the prison authorities in accordance with the 1960 amendment, declared that after July 1, 1960 (the effective date of the amendment), the petitioner and others similarly situated would no longer be required to serve delinquent time on their original sentences and that the service of their new sentences would commence on that date. The petitioner was thus relieved of the obligation under the old statute (subject to the exercise of the Parole Board’s jurisdiction) of serving an additional period of almost four years upon his original sentence before commencing the service of his new sentence.
The petitioner maintained, however, that he was entitled to an additional benefit and that his entire period of service of delinquent time should be reallocated, as if the new statute had been in effect at the time of the declaration of delinquency in 1955, instead of the old one, so that the maximum period of delinquent time which he could be required to serve would be only 3 years and 3 months from the time of his return to prison in 1955, which would run to February 28, 1959. He further maintained that all time served after that date should be credited on his new sentence, as if he had commenced service of his new sentence on March 1, 1959, and he asked that the Commissioner of Correction be directed to recompute the time owing by the petitioner accordingly. The prevailing opinion accepts the prisoner’s contentions and directs that a recomputation be made in accordance therewith.
With this I cannot agree. The majority’s decision gives the 1960 amendment a retroactive effect in a most extreme form. It not only holds that the new statute is applicable to prisoners serving delinquent time on July 1,1960, but it holds that the time theretofore served in accordance with the statute then prevailing should be reallocated and that part of the time served should be treated as having been served under the new sentence instead of the old one, as if the new statute had been in force during that period. I can find no sanction in the statute for this construction. It is elementary that statutes are to be construed prospectively in the absence of a clear indication by the Legislature to make them retroactive (Saltser & Weinsier v. McGoldrick, 295 N. Y. 499, 507; Waddey v. Waddey, 290 N. Y. 251, 254; New York & Oswego Midland R. R. Co. v. Van Horn, 57 N. Y. 473, 477-478; McKinney’s Cons. Laws of N. Y., Book 1, Statutes, § 51, p. 67).
If section 5 of chapter 473 of the Laws of 1960 had not been inserted, a question would have arisen as to whether the statute was to apply at all to prisoners then serving delinquent time or whether it was to apply only to prisoners thereafter released on *228parole or thereafter returned to prison for a violation of parole (cf. People ex rel. Zakowicki v. Morhous, 285 App. Div. 311). Section 5 merely makes it clear that the Legislature intended to have the statute apply to the prisoners then serving delinquent time so that they would he given the benefit of the statute and would not be required to serve any delinquent time in the futiere, except in accordance with the provisions of the new statute. Thus, as the Parole Board and the correction authorities correctly decided, a prisoner who had already served more delinquent time on July 1, 1960 than he would have been required to serve if his delinquent time had been computed from the date of delinquency instead of from the date of his original release on parole, could not properly be required to serve any additional delinquent time in the future. It may be argued that this involves a kind of “ retroactivity ” but the statute remains essentially prospective in operation, i.e., it applies only to the extent of the service of delinquent time to be required in the future. This construction certainly does not open the door to the extreme kind of retroactivity and “ as if ” reasoning adopted in the prevailing opinion. There is no provision in the statute for crediting upon a new sentence any part of the delinquent time which had been served under the original sentence in accordance with the law prevailing at the time of the service.
As has been indicated, the result reached by the majority requires the application of an “ as if ” line of reasoning which is contrary to all rules of statutory construction.
The majority’s reasoning would produce anomalous and inequitable results. In the case of a prisoner who had served under the old statute more delinquent time than he could have been required to serve if the new statute had been in force at the time of the service, the prevailing opinion holds that he is entitled to have the so-called excess time credited on his new sentence. But what if there is no new sentence 1 The prisoner may have committed a felony outside the State for which he had served his full sentence prior to being returned to New York State for violation of parole. There would be no new sentence upon which to credit the alleged excess service in accordance with the majority’s reasoning. Or suppose the case of a prisoner who had committed a felony in New York State while on parole and, after he returned to prison, had served all but, one month of delinquent time owing under the old statute on July 1, 1960. He would be entitled to credit under the majority’s reasoning upon his new felony sentence for all the time which he had served under the old statute in excess of that which he could have been required to serve under the new statute. But a prisoner who had *229just completed the service of an equivalent amount of delinquent time under the old statute on July 1, 1960, would not get any credit for the so-called excess time on his new sentence. This inequitable result is readily avoided by giving the statute its normal prospective effect and holding that the prisoner who had served all but one month of his delinquent time should be relieved of the service in the future of that month, but should not receive any credit on his new sentence for delinquent time served in the past.
Section 5 of chapter 473 of the Laws of 1960 specifically provides : ‘ ‘ Such amendments shall not apply to prisoners who upon the effective date of this act have completed service of such delinquent time ”. Neither do the amendments apply to the part of the service of delinquent time which had been completed prior to the effective date of the act. As has been stated, that service was completed under the old statute and there is nothing in the amendments which authorizes a reallocation of the service or a crediting of the time so served upon any other sentence (cf. People v. Kowalsky, 2 A D 2d 938, affd. 2 N Y 2d 949).
It may be noted that in the earlier amendments to section 219 in 1954 and 1957, to which reference is made above, limiting the period of mandatory delinquent time to 5 years, there was a similar provision that the amendments should apply to all prisoners serving delinquent time “ on or after the effective date of this act ’ It has never been suggested that under that provision prisoners who had theretofore served more than 5 years of delinquent time were entitled to have the excess credited upon some other sentence.
I would therefore reverse the order appealed from and dismiss the petition.
Bastow and McClusky, JJ., concur with Williams, P. J.; Halpern, J., dissents and votes to reverse and dismiss the petition in opinion in which Goldman, J., concurs.
Order affirmed.