Majority
Appeal from an order of the Supreme Court, Special Term, Clinton County, which dismissed a writ of habeas corpus. Appellant was sentenced as a fourth offender to a term of imprisonment, the maximum of which was his natural life and the minimum thirty years. He claims that one felony conviction was void because he was sentenced to a term of six months in the city penitentiary. Because he was then a second offender he contends that he should have been sentenced to a State prison. He was not convicted, however, as a second offender at the time he was sent to the penitentiary. That was in 1922, and under the circumstances the court at that time had power to impose a penitentiary sentence. Order affirmed. Foster, P. J., Brewster, Bergan and Coon, JJ., concur; Heffernan, J., taking no part.