p. 515JAMES F. CORLEY et al., Plaintiffs and Respondents v. WILEY H. GRIFFIN et al., Defendants and Appellants.Before Barbour, Ch. J., and Curtis and Van Vorst, JJ.Decided December 31, 1873.Headnote
The portion of section 288 of the Code that provides as follows: “If any defendant be in actual custody under an order of arrest, and the plaintiff shall neglect to enter judgment in the action within one month after it is in his power to do so * * * * such defendant may on his motion be discharged,” etc., etc., confer upon such a defendant the absolute right to such a discharge. The word may, taken in connection with context, clearly shows this intention of the legislature as much as if the word shall had been used.It is not a mere permission to the court to exercise a discretion in the premises. If the defendant in custody establishes the facts in the case, he is entitled to his discharge.
Appeal from an order of the Special Term refusing to discharge a defendant from actual custody under an order of arrest, as provided in section 288 of the Code. The facts appear fully from the points and opinion of the ■court.
Roger A. Pryor, for appellants.
1. Appeal from order denying motion for appellant’s discharge from imprisonment. Motion made under and pursuant to section 288 of the Code, amendment, 1870.
2. Order not in discretion of judge. In Section 288
p. 516of the Code may means shall; and no ‘ ‘ cause to the contrary” being “shown,” appellant was entitled of right to a discharge (People v. Supervisors, etc., 51 N. Y. 406 ; The Mayor v. Furze, 3 Mill, 612 ; Mason v. Fearson 9 How. [U. S.] 237; Supervisors v. U. S., 4 Wallace [U. S.] 446 ; City of Galena v. Amy, 5 Wallace [U. S .] 705)..
Treadwell Cleveland, for respondents. ,
The language of section 288 of the Code, under which this motion was based, is permissive only, and not mandatory. It confers a discretion upon the court. The precise words are : “If any defendant be in actual custody under an order of arrest, and the plaintiff shall neglect to enter judgment in tho action within one-month after it is in his power to do so * * * such defendant, may on his motion be discharged from custody by the court in which such action shall have been commenced, unless good cause to the contrary be shown; and after being so discharged, such defendant shall not be arrested upon any execution issued in such action.
“ The primary and most common use of the word ‘ may ’ is the giving permission to perform the act referred to. Where it occurs in a statute it should be read in that sense, and not in the sense of ‘must,’ unless-there is something in the connection of the language, or in the sense and policy of the provision, to require an unusual interpretation” (Miller
v. People,
24 N. Y. 405 ).
It is true that when a public body is clothed with power to do an act which concerns the public interest,, the exercise of that power may be insisted on as a right, but the word “may” in a statute can mean “must” or “shall,” only in those cases where the public interests and rights are concerned, and when the public, or individual persons have a claim de jure that the power should be exercised (Malcolm v. Rogers, 5 Cow..
p. 517Had the legislature intended that the provision should be mandatory, the language would have been—the de- . fendant “ shall be discharged from custody,” etc.
To give the word “ may” the meaning of “must” in this case is against all well-known rules of construction.
It seems quite clear that the legislature designed, by the second subdivision of the 288th section of the Code, to confer upon every defendant who should be kept in actual custody upon an order of arrest, for more than one month after the plaintiff had power to enter judgment, an absolute right to be discharged from such custody, and exonerated from liability to arrest on execution, unless good cause to the contrary should be shown. The word “may,” taken in connection with the context, just as clearly exhibits that intention as the.word “shall” would have done. The provision in question, therefore, gives to a prisoner so situated the privilege of asserting and obtaining one of the highest and most important rights of a citizen, the right of personal liberty, ■and is not a mere permission given to the court to grant the release, or, arbitrarily, to withhold it, notwithstanding no “good cause to the contrary” be shown (see Williams v. The People 24 N. Y. 405 , and 2 N. Y. 556 , § 37). Indeed, the exercise of such arbitrary power would defeat the plain intent and object of the legislature.
In this case, all the facts required by the act to entitle the prisoner to the relief asked for were established by the moving papers, and no attempt was made by affidavit or otherwise to show any cause why he ought not to be discharged. The motion should therefore have been granted, and it follows that the order appealed from must be reversed, with costs, and an order
p. 518entered discharging the defendant Griffin from the custody of the sheriff.
Curtis and Van Vorst, J J., concurred.