Majority
Order so far as appealed from reversed on the law, without costs of this appeal to either, party, and relator remanded to the custody of the Warden of Attica State Prison, Attica, New York. Memorandum: The relator was indicted in Erie County, New York, on May 27, 1938, for the crime of burglary, third degree, and for no other indictable offense. On June 16, 1938, the relator pleaded guilty to the crime of grand larceny, second degree, and received a sentence of five to ten years as a second offender. He challenged the legality of his conviction in a habeas corpus proceeding in Wyoming County Court in September, 1943. The learned court held that relator’s conviction and sentence were invalid and entered an order on November 17, 1943, dismissing the writ but remanding the relator to the custody of the Sheriff of Erie County to be held under the above mentioned indictment. From that order the People of the State of New York and the Warden of Attica State Prison have appealed to this court. Counsel for the relator asks affirmance on the grounds as stated and urged in People ex rel. Tracher v. Martin (ante, p. 955, decided herewith). The order, so far as appealed from, must be reversed for the reasons stated in our memorandum in the Tracker case (supra). All concur. (The portion of the order appealed from remands relator to the custody of the Sheriff of Erie County, to be held under the indictment for burglary, third degree.) Present — Cunningham, P. J., Dowling, Harris, MeCurn and Larkin, JJ.