In re McCloskey

Application by the Sheriff of the City of New York for an order pursuant to section 508 of the Correction Law, to transfer appellant from the Sheriff’s New York County Civil Jail to the tuberculosis ward of Rikers Island Hospital or, in the alternative, for an order pursuant to section 775 of the Judiciary Law, to direct appellant’s discharge from imprisonment if the court shall find that he is in such a state of health as to be unable to endure the imprisonment. Order granting the application to the extent of directing appellant’s transfer to said hospital until he has sufficiently recovered from his illness to be safely returned to said jail reversed, without costs, and appellant discharged from custody. Under the circumstances of this ease, the refusal to grant relief under section 775 of the Judiciary Law was an improvident exercise of discretion. In any event, the question is now academic for, in view of the decision in Gruttemeyer v. Gruttemeyer (ante, p. 1185), decided herewith, appellant is entitled to be released from custody. Nolan, P. J., Wenzel, MacCrate, Schmidt and Ughetta, JJ., concur.