(concurring). I concur in the result but do not agree that the second sentence of CPLR 7004 (subd. [e]) was applicable to authorize the Justice to make the writ returnable *398in the -Comity of Now York. The relator is confined in a Stale institution, namely, Green Haven Prison, and, in my opinion, the said second sentence of subdivision (o) was not intended to deal with per,sons detained in a. State, institution. Where the relator is so confined, the first sentence of CPLR 7001 (subd. [c]) is applicable generally to require that the writ of habeas corpus be returnable in the county in which the person is detained, or if there is no Judge available in such county, before the nearest accessible Supremo Court Justice or County Judge.
In this case, however, the Justice did not act in excess of jurisdiction in the issuance of the writ of habeas corpus with the incidental direction to produce the relator in New York County. Such direction merely represented an erroneous or improper exercise of his jurisdiction in the issuance of the writ. Insofar as a habeas corpus proceeding is brought solely for the purpose of attacking the validity of the sentence of a State prison inmate as distinguished from an attack upon the validity of his conviction, there is no requirement that he be produced on the return of the writ. The Warden of the State prison ‘ ‘ shall make a return to the [writ] and, if required by it, [shall] produce the body of the person detained at the time and place specified”. (CPLR7006, subd. [a].) (7 Weinstein-Korn-Miller, N. Y. Civ. Prac. [par. 7004.04] sets forth the form for use where the prisoner is not to be produced.)
Eventually, if it is determined that there was a failure to comply with section 480 of the Code of Criminal Procedure, the sole relief to which the relator may be entitled is to be remanded to the sentencing court for resentence (People ex rel. Emanuel v. McMann, 7 N Y 2d 342, 345). The direction to produce the relator in New York County at this time, prior to a determination on the merits of' his alleged case for resentence, was erroneous and premature.
Under the circumstances, however, I agree that this article 78 proceeding, in the nature of one to secure a writ of prohibition, does not lie; it is not maintainable for the purpose of obtaining the review or correction of the alleged erroneous direction in the writ. (See CPLR 7801.)
Rabin, J. P., and .Stevens, J., concur with McNally, J.; Eager, J., concurs in result in opinion.Application of petitioner denied and the proceeding dismissed, without costs and without disbursements. The stay contained in the order to show cause, dated April 1,1966, is vacated.