In re Shepard — 5 N.Y. St. Rep. 480

Majority

p. 480

Matter of Philo M. Shepard.

(Supreme Court, General Term, Fifth Department,

Filed January 25, 1887.)

Headnote

Oedee op aeeest — Code Civ. Peo., § 111.

A party having been imprisoned under an order of arrest in a civil action for more than six months, a writ of habeas corpus to inquire as to the cause of his detention having been issued, asked for his discharge under Code Civ. Pro., § 111. Upon a hearing on the writ he was remanded to custody of the sheriff, and the order affirmed on appeal.

Appeal by Shepard from order of Erie special term, remanding him to custody of sheriff after hearing on habeas corpus as to cause of his imprisonment.

Shepard was arrested by the sheriff of the county of Wayne, N. Y., Dec. 19, 1885, upon an order of arrest granted in an action in the Supreme Court, in which the New York Central and Hudson River R. R. Co. was plaintiff, and Shepard was defendant. He was, under such order, confined in Wayne county jail until Feb. 19, • 1886, when he was brought before the Erie county court of sessions to plead to an indictment, and he was then delivered into the ocustody of the sheriff of Erie county under an order of said court of sessions. He was before the Erie special term upon habeas corpus, issued June 29,1886, to inquire into the cause of his detention, and after hearing he was remanded to the custody of the sheriff by- the order appealed from.

p. 481

P. K. Weaver, for deft; Charles S. JPooley, for N. Y. C. & H. R. R. Co.

Shepard having been imprisoned more than six months under an order of arrest in a civil action, asked for his discharge under Chap. 672, Laws of 1886, (Sect. 111, Code of Civil Procedure), entitled “ An act to amend, the Code of Civil Procedure.” The court at special term denied his application for reasons stated in the opinion of Justice Collett. (10 Civ. Pro. Rep., 153; S. C., 1 N. Y. St. Rep., 77 .)

The case of The People ex rel. Roding, 10 Civ. Pro. R., 174, note, at special term, and the case of Warshauer v. Webb, 10 Civ. Pro. R., 169, at special term of New York city court," are in the same direction. Adverse to these is The People ex rel. Lust v. Grant, 10 Civ. Pro. R., 158; S. C., 1 N. Y., St. Rep., 537 .

The discussion which the point has undergone makes it unnecessary to go over the examination and discussion again in a written opinion.

Our conclusion is that the order be affirmed.

Order affirmed with $10 costs and disbursements.

All concur.