People ex rel. Smith v. Biggart — 25 A.D. 20

Majority

p. 20

The People of the State of New York ex rel. Sanford Smith, Respondent, v. Frank Biggart, as Deputy Sheriff, Appellant.

Headnote

Habeas corpus — cm judgment debtor on the jail limits is not entitled to be discharged' thereunder, eren if the judgment does not authorize his arrest.

A defendant in an action, against whose person an execution has been issued, upon a judgment entered therein, is not entitled, even where the judgment does not authorize his arrest, to an order discharging him from the custody of' the sheriff, upon its appearing from the return to a writ of habeas corpus that. the relator is not in actual custody, but that, having given a proper undertaking,. he is, and is entitled to be, on the jail limits.

p. 21

Appeal by the defendant, Frank Biggart, as deputy sheriff, from, an order made by the special county judge of Washington county and entered in the office of the clerk of the county of Washington on the 2d day of October, 1897, discharging the relator from the custody of the defendant as deputy sheriff or otherwise, and from further restraint'and imprisonment under and by virtue of an execution issued out of the Supreme Court to the sheriff of Washington county in the action wherein the Long Island Mutual Fire Insurance Corporation is plaintiff and the said Sanford Smith is defendant.

The ground upon which the discharge was based, as appears from the order, was that the facts alleged in the complaint in • the action in which the judgment was rendered upon which the execution was issued, did not authorize the arrest of the defendant therein, and that, therefore, the execution was void.

J. M. Whitman, for the appellant.

M. H. O'Brien, for the respondent.

In the return of the appellant to the writ it was specifically stated that the relator had given an undertaking entitling him to the jail limits and that he was then on such limits. This was not denied by the relator in his traverse to the return, and we must assume it to be true. The same thing may be inferred from the petition itself of the relator. The order of discharge recited that the relator appeared before the judge in person and by attorney.

The appellant claims that, as the relator was on the jail limits, there was no such restraint as authorized a resort to the writ of habeas corpus. It was so held in Matter of Lampert ( 21 Hun, 154 ), decided by the General Term in the- first department. The same doctrine is laid down in Hurd on Habeas Corpus (2d ed. 201), citing Dodge's Case (6 Martin [La.], 569). We are not referred to any authority to the contrary. Following, as I think we should, the Lamport case, the order should be reversed and the proceeding dismissed. If the body execution was not proper,, the defendant

p. 22

therein has a perfect remedy by motion in the action where all parties can be heard.

The order should be reversed, with ten dollars costs and disbursements, and the proceeding dismissed.

All concurred ; Putnam, J., concurred in result.-

Order reversed, with teii dollars costs and disbursements, and proceeding dismissed. . ■