Sibley v. Smith — 73 N.Y.S. 977

Majority

p. 977

SIBLEY v. SMITH.

(Supreme Court, Appellate Division, First Department.

January 10, 1902.)

Headnote

1. Arrest—Bail—Reduction.

-Under Code Civ. Proc. § 567, providing that a defendant arrested pending an action may at any time before final judgment apply to vacate the order of arrest or to reduce the amount of bail, the court may reduce the bail, though the defendant gave the same without objection, and without reserving the right to apply for a reduction.

2. Same—Amount—Excessiveness.

Where the Code limits imprisonment under an execution against the person to six months, an amount of bail in excess of $5,000, given to secure the presence of defendant in case execution should he issued against his person, is excessive.

Appeal from special term, New York county.

Action by Richard Clay Sibley against George Stuart Smith. From an order granting a motion to reduce bail, plaintiff appeals.

Affirmed.

Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.

L. Laflin Kellogg, for appellant.

J. Noble Hayes, for respondent.

This action was brought to recover $100,000 as damages for the alienation from the plaintiff of his wife’s affec

p. 978

tian. The plaintiff obtained an order of arrest from a justice of the supreme court, and bail was fixed at $20,000. The defendant was arrested under this order, and thereupon moved to reduce the amount of bail. That motion came on before a special term presided over by the same justice who granted the original order of arrest, and he reduced bail to the sum of $5,000, and from the order reducing the bail the plaintiff appeals.

On this appeal the plaintiff claims that by giving bail without objection, and without reserving his right to apply to reduce the amount, the defendant waived his right to have the bail reduced, and the motion for that reason should have been denied. Whatever the rule in this respect was before the Code of Civil Procedure, the right is there given to the defendant to move to reduce the amount of bail at any time before final judgment, where, he has been arrested as prescribed in that title of the Code (section 567). This right is not restricted to a case in which the defendant is in actúal custody, but where he has been arrested he is given the absolute right to move either to vacate the order of arrest or to reduce the amount, of bail. The authority to reduce the bail is the same as that which authorizes the court to vacate the order of arrest, and certainly the court has power to vacate the order of arrest after the defendant had given the bail prescribed by the Code. We think this bail as originally' given was excessive. The bail is not given to secure the payment of a judgment obtained by the plaintiff, but simply to secure the presence of the defendant in case an execution should be issued against his person. Under such an execution, under the present provisions of the Code, the defendant would be entitled to his discharge after confinement within the jail limits, and certainly nothing appears in this case to suggest that bail in the amount of $20,000 was necessary to secure the attendance of the defendant in case a judgment were obtained against him. The cases cited by the plaintiff as to the amount of bail that should be required, decided before the provisions of the Code limiting an imprisonment under an execution aganst the person to six months, are not applicable, for at that time the plaintiff was entitled to take the body of the defendant on the execution in satisfaction of his judgment. Under the present system the limit for which the defendant •can be held is six months, and that fact should' be considered in fixing the amount.

The question as to whether the amount of the reduced bail is excessive is not before the court, as the defendant has not appealed from the order; but in an ordinary criminal charge for a misdemeanor which might involve an imprisonment for a year exceptional circumstances would be required to justify the court or a judge in holding a defendant to bail even in the amount to which the bail in this case was reduced. So far as we can see from this record, there is nothing to justify the court in fixing the amount of bail in excess of $5,000.

It follows that the order appealed from should be áffirmed, with $10 costs and disbursements. All concur.