Tbe appeal in tbis case brings up solely tbe question of tbe right of tbe New York Oatbolic Protectory to retain tbe custody, during bis minority, of John Yan Heck, a child nine years of age, of tbe relator Leon Yan Heck, who was, on tbe 5th of November, 1884, arrested for begging in tbe streets of New York and brought before a police justice of tbe city, under tbe provisions of section 291 of tbe Penal Code, and by him committed to tbe custody of tbe protectory. Tbe returns both to tbe writ of habeas corpus and to'the certiorari sufficiently show that tbe child was lawfully arrested while engaged in tbe act of begging, receiving and sobciting alms on Centre street, in tbis city, and that bis conviction beforetbe magistrate of that offense was regular in form. Tbe Special Term was right, therefore, in bolding that under tbe decisions cited, tbe court is not at liberty to go behind tbe conviction and re-trytbe question of fact upon which it was made. (People ex rel. Perkerson v. St. Dominick, 34 Hun, 463; People ex rel. Eck v. American Female Guardian Society, 34 Hun, 633; Matter of Moses, 13 Abb. N. C., 196.)
Tbe only question.remaining in tbe case is whether tbe child was-committed to tbe Oatbolic Protectory in such form and manner *129that that institution is authorized to retain his custody against the claim of his father during his minority. It was considered by the court below that this question was disposed of by the fifth subdivision of section 291 of the Penal Code, which provides that such court or magistrate may commit the child to any charitable reformatory or other institution authorized by law to receive and take charge of minors, or may make any disposition of the child such as is now or hereafter may be authorized in cases of vagrants, truants, paupers or disorderly persons. It seems to have been supposed that this provision authorizes the commitment, generally, to any charitable reformatory, or other institution, in such manner as to abrogate or supersede the provisions of law prescribing the circumstances or conditions on which such institutions are respectively authorized to receive and retain the custody of minors.
"We think this to be a mistaken view of the intent and effect of the provisions of the act in question. That provision does not, in our judgment, authorize the commitment of a child arrested under section 291, to any charitable reformatory or other institution generally, without regard' to the authority under the law of such institution to receive and continue the custody of the person committed. On the contrary, it confers no power to commit to an institution of the character named, except in conformity to its lawfully authorized power to receive.
It becomes necessary therefore to inquire into the authority of the Catholic Protectory to receive the child of the relator under the commitment of the magistrate in this ease and retain his custody during his minority. The authority of the New York Catholic Protectory to receive and retain children committed under such circumstances is conferred by its charter (chap. 448 of the Laws of 1863) and by certain sections of the Consolidation Act. (Laws of 1882, chap. 410, §§ 1618-1624 inclusive.)
Under these provisions it is not sufficient that it shall appear that the child is found begging or receiving or soliciting alms in the manner forbidden by section 291 of the Penal Code to authorize the commitment of such child to the Catholic Protectory, because the protectory is only authorized, as will be seen by section 8 of its charter and section 1618 of the Consolidation Act, to receive such child in custody where it shall further appear “ to *130tbe satisfaction of sucb magistrate or court by competent testimony or by tbe examination of tbe child that by reason of tbe neglect or vici hi* habits <>i rl.e parents or other lawful guardian of sucb child, it is a proper object for tbe care of sucb corporation.”
Section 1618 further requires that tbe warrant of commitment shall set forth in substance that these facts have ajipeared to tbe satisfaction of tbe magistrate, in which case they may commit tbe qhild to tbe said corporation at its bouse of reception, to be detained there until discharged or removed therefrom in tbe manner thereinafter provided.
Section 1619 provides that after sucb commitment be made, tbe magistrate or court making tbe same shall deliver to a policeman of tbe city, especially detailed for that service, a notice in writing addressed to tbe father of sucb child, if its father be living and resident in tbe city, and if not, then to its mother if she be living and so resident, and if there be no father or mother of sucb child resident within tbe city then addressed to tbe lawful guardian of sucb child, if any, or to tbe person with whom, according to tbe examination of tbe child, and tbe testimony, if any, received by sucb magistrate or court, sucb child shall reside, in which notice tbe party to whom tbe same is addressed shall be informed of tbe commitment of sucb child to tbe bouse of reception of said corporation, and notified that unless taken therefrom in tbe manner prescribed by law within twenty days after the service of sucb notice, tbe child will be committed to tbe asylum of tbe corporation. Section 1620 prescribes tbe mode of service of sucb notice, and by section 1621 the parent or person to whom sucb notice is addressed is at liberty to appear within twenty days before tbe magistrate or court, and show that tbe circumstances under which tbe child shall have been found have not been occasioned by bis habitual neglect or misconduct, and then it is tbe duty of tbe magistrate, by an order in writing addressed to the superintendent of tbe bouse of reception, to direct sucb superintendent to deliver sucb child to tbe custody of tbe party named in sucb order, who shall thereupon be entitled to take sucb child from sucb bouse of reception. Section 1622 declares that if said proof shall not be produced within tbe twenty days, it shall be tbe duty of tbe magistrate or court by whom tbe child shall have been committed to tbe house of reception, to make *131and transmit to the superintendent thereof a notice in writing of that fact, and thereupon the child shall be removed to the asylum of the corporation.
None of these several provisions seem to have been complied with by the committing magistrate in this case, and inasmuch as the authority of the protectory to receive and keep in custody is limited to cases where compliance with those requirements appears, the commitment to that institution must be regarded as unauthorized. There is nothing in section 291 of the Penal Code which increases the authority of the protectory to receive and take charge of minors beyond that conferred upon it by statute. On the contrary, it limits the power of the magistrate in designating the charitable reformatory or other institution as the place of commitment to one authorized bylaw to receive and take charge of the childand power is not given to commit to any such institution, whether authorized by law to receive and take charge of minors or not. The warrant in this case committed the child to the house of reception of the New York Catholic Protectory, but it failed to show the case to be one upon which that house is authorized to receive the child, and none of the subsequent steps were taken, as required by law, to authorize commitment to the asylum after the expiration of twenty days.
It appears that more than twenty days had elapsed at the time the writs were sued out, and no notice whatsoever having been given to the father as required by law, the right of the protectory to transfer the child from the house of reception to the asylum, and to retain its custody, did not lawfully exist. Those steps were both jurisdictional and important, because when properly taken they operate to authorize the protectory to retain the custody of the child during its entire minority, and to wholly supersede the authority of the parent over the child for that entire period. Where such consequences are to follow a commitment it is important that the requirements of law, under which alone the protectory can acquire so large and exclusive an authority over children committed to its custody, should be carefully observed and followed. We think the court below erred in holding that the conviction of the magistrate in this case was sufficient to justify the detention of the child against the claim of his father, the relator.
*132The order should therefore be reversed and an order made directing the delivery of the custody of the child to the relator.
Daniels, J., concurred.