People ex rel. Cropsey v. Townsend — 218 N.Y. 615

Majority

p. 615

The People of the State of New York ex rel. James C. Cropsey, as District Attorney of Kings County, Appellant, v. William Townsend et al., Individually and as the Board of Parole for State Prisons, Respondents.

Headnote

People ex rel. Oropsey v. Townsend, 172 App. Div. —, affirmed.

(Argued February 25, 1916;

decided April 18, 1916.)

Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 28,1916, which affirmed an order of Special Term denying a motion for a peremptory writ of mandamus to compel the hoard of parole for state prisons to rescind a parole theretofore granted. The question presented was whether a prisoner under conviction for a second felony, who had previously received a suspended sentence, is a second offender and consequently denied eligibility for parole. The attorney-general raised the jurisdictional question of the right of the district attorney to pursue an application for mandamus against a state board.

James C. Cropsey, District Attorney (Ralph E. Hemstreet and Hersey Egginton of counsel), for appellant.

E. E. Woodbury, Attorney-General (Edward G. Griffin of counsel), for respondents.

We think that Bassi, the paroled prisoner, was a. necessary party to this proceeding (Matter of Jones v. Willcox, 80 App. Div. 167 , 170; Powell v. People, 214 Ill. 475 ; R. v. Bankes, 3 Burr. 1452), and the failure to make him a party leaves us unable to determine the validity of the parole.

p. 616

The order should he affirmed without prejudice to the renewal of the' application when the proper parties are before the court.

Willard Bartlett, Oh. J., Chase, Collin, Cuddeback, Cardozo, Seabury and Pound, JJ., concur.

Order affirmed, etc.