Levy v. Salomon — 19 Abb. N. Cas. 52

Majority

p. 52

LEVY v. SALOMON.

Headnote

[Reversing 18 Abb. N. C. 220 .]

N. Y. Court of Appeals ;

May, 1887.

1. Discharge from imprisonment under L. 1886, c. 672.] The Act of 1886, c. 672, amending Code Civ. Pro. § 111, and providing that “ no person shall be imprisoned within the jail liberties of any jail for a longer period than six months upon any execution or other mandate against the person ”—applies only to an execution or other mandate against the person “to enforce the recovery of a sum of money,” that is, to an imprisonment upon final process only.^[1]

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2. The same; imprisonment under order of arrest.] Under that Act, a defendant who has been arrested on mesne process and given bond for the jail limits, is not entitled, at the expiration of six months, to be discharged from arrest and imprisonment within the limits.

3. Appeal from order discharging prisoner.] An order discharging defendant from arrest in such case, is appealable to the court of appeals. It deprived plaintiffs of a remedy given by statute, which they might retain until the prisoner was discharged according to law.

Appeal by plaintiffs from an order of the general term, supreme court, first department, which affirmed an order of the special term, granting defendant’s application for his discharge from the jail limits.

The decision below is reported in 18 Abb. N. C. 220 .

The facts fully appear in the opinion.

Wales F. Severance (Townsend, Dyett & Einstein, attorneys), for the plaintiffs, appellants.

Alexander Blumenstiel (Blumenstiel & Hirsch, attorneys), for the defendant, respondent.

The record shows that the plaintiffs sued to recover personal property, and on February 9 procured the defendant’s arrest upon the ground that he had concealed, etc., a part of the chattels, to recover which the action was brought. On the same day the defendant gave a bond for the jail limits and has since been confined within them. It may be inferred that the cause is at issue, but it • has not been tried nor has any judgment gone against the defendant. Upon an affidavit showing his arrest and continued imprisonment, as above stated, the defendant procured an order requiring the plaintiffs to show cause why he should not be discharged from the limits and “ from arrest herein,” and the bond given by him be cancelled and annulled. The motion was granted. Upon appeal to the

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general term the decision was affirmed, and the plaintiffs appeal to this court.

The defendant justifies the order of the court below upon the sole ground that under the order of arrest his im-' prisonment has continued six months, and he was therefore entitled to a discharge under the provisions of section 2, chap. 672 of the Laws of 1886. On the other hand, the plaintiffs contend that the statute applies to an imprisonment" on final process only. We are of that opinion. The general title of the Act of 1886 (supra), is “ An act to amend the Code of Civil Procedure,” and the particular portion, on the interpretation of which the defendant relies, is the amendment of section 3 of the Code. The original section (3) relates to the “ Support of prisoners in Kings county.” The amendment introduces new matter as to the meaning of which nothing can be gathered from the context.

It declares in the first clause, that “Xo person shall be imprisoned within the prison walls of any jail for a longer period than three months, under an execution or any other mandate against the person to enforce the recovery of a sum of money less than $500 in amount, or under a commitment upon a fine for contempt of court in non-payment of alimony or counsel fees in a divorce case, where the amount so to be paid is less than the sum of $500, and where the amount in either of said cases is $500 or over, such imprisonment shall not continue for a longer period than six months;” and requires the discharge of such person at the expiration of those respective periods. Then follow these words: “Xo person shall be imprisoned within the jail liberties of any jail for a longer period than six months upon any execution or other mandate against the person.”

These sentences are, I think, to be read together, and so read, admit of but one meaning, viz., that no person whose condition answers the terms referred to in the first clause} shall be imprisoned either within the walls of the jail or within the jail limits for a time exceeding six months, and

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if the recovery for the enforcement of which the execution or other mandate is issued, or the amount required to be paid by the commitment is less than $500, then this imprisonment within the prison walls shall not exceed three months. This is the only distinction applicable under the first clause where the debtor is in close confinement, while under the second, when as to the walls of the jail and within certain limits he is at large, the amount of the recovery, or sum to be paid, is unimportant. The respondent concedes that under the first sentence only a final process or mandate after a judgment fixing the amount due, is referred to, but argues that the change of language in the second clause or sentence indicates a change in the intention of the legislature and a design to make it more extensive in its application than the former.; and although the first included only final process or mandate, the second is of wider signification, and includes all mandates against the person and so includes simple orders of arrest issued at the time of the commencement of the action and before any recovery. This would require us to hold that the legislature intended to alter the description of the process by virtue of which the imprisonment was had, rather than the description of the place of imprisonment. I find no reason for doing this. The statute in the first place characterizes the process as “ an execution or any other mandate against the person to enforce the recovery of a sum of money,” and in the next sentence, speaking of the imprisonment in a different place, repeats the words, “ upon any execution or other mandate against the person,” but does not again use the descriptive or qualifying words. This may have been to avoid the repeated use of the same words. They are to be implied for the statute relates to a single matter, the relief of the imprisoned debtor, and this would bo greatly impeded if a different meaning can be given to the second phrase.

According to the respondent the first clause includes only final process or execution to enforce recoveries. It, therefore, does not include mesne process. The second,

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he says, includes mesne process or orders of arrest. It would follow that a debtor arrested on such process, but unable to procure bail for the limits, could not be discharged because confined within the walls, while one arrested in the same manner and already outside the walls, though within the limits, could be wholly liberated. That would'seem to be an absurd conclusion and not to be adopted unless necessary to give meaning, to the act. This is avoided by construing the second clause with reference to the first, and the true meaning is that which we have above ascribed to it.

"The general object of the act in question (§ 3, chap. 672, Laws of 1886), is to limit the time of imprisonment under process issued against any person after the sum due him had been adjudged, whether the imprisonment was within the walls of the jail, or within its liberties. If confined within the walls, the amount of the recovery or the sum to be paid by the imprisoned person determines whether the imprisonment shall end at the expiration of three months, or at the expiration of six months. But if he had been admitted to the jail liberties there is no such qualification, and the six months period applies to all cases within the act. The defendant is not an imprisoned debtor within the act. Xo execution or other mandate has been issued against him to enforce the recovery of a sum of money. Xo recovery has been had against him, nor has he been ordered to pay any money. We think, therefore, his discharge was improperly allowed. The order was appealable. It deprived plaintiffs of a remedy given by statute, which they might retain until the. prisoner was discharged according to law.

.The orders of the general term and special term, should therefore be reversed, and the motion to discharge the defendant and cancel the bond given by him for the liberties of the jail denied, with costs in all courts.

All concurred.