Hoyle v. McCrea

Herrick, J.: In the case of Sweet v. Palmer (16 Johns. 181), where the defendant, in execution attempted to avail himself of a somewhat similar permission to the one in this case, the court said, “ The evidence clearly shows fraud and a trick on the part of the defendants ; and we rejoice that the rules of law are such as to prevent the success of their cunning.” And again, ‘‘ If * * * the debtor-procured the license by collusion and preconcerted fraud, it would be affrontful to justice to tolerate such a defense.” In this case the defendant appealed to the humanity of the plaintiff to grant him .a temporary release from the jail limits to enable him to visit his wife, who was represented to be very sick and desirous of seeing him. What was granted was not a general permission, as in most of the cases that have been cited by the appellant, to go at large. ' There is nothing to indicate that the plaintiff intended to release the defendant from imprisonment; on the contrary,-it shows au intention of insisting upon it, because consent was given upon condition that he should return. The defendant having received permission to go at large, under the circumstances that he did, should not be permitted to assert his release from imprisonment, under such circumstances, as a satisfaction of the judgment against himgood faith demands that he be estopped. In the language of the court in the case of Sweet v. Palmer (supra), “ It would be affrontful to justice to tolerate such a” claim. Moreover, whatever the law may formerly have been, the imprisonment of a person upon execution in a civil action no longer consti [315] tutes a satisfaction of the judgment, except during the continuance of the imprisonment. (Code Civ. Proc. § 1491; Koenig v. Steckel, 58 N. Y. 475 ; Flack v. State of New York, 95 id. 461.) It is now expressly provided by statute that the mere imprisonment upon execution, and the debtor’s discharge therefrom, shall not discharge or satisfy the judgment. Sections 2200 to 2218, inclusive, of the Code of Civil Procedure provide for the discharge of imprisoned judgment debtors upon their own application, and section 2213 expressly preserves all remedies of the creditor against the property of the debtor after his discharge from imprisonment. The statute also provides for the discharge from imprisonment of an imprisoned debtor by the judgment creditor, without discharging or satisfying the judgment. By section .1494 of the Code the judgment creditor may, after the debtor has been in custody by virtue of an execution against his-person for the space of thirty days, by a written notice to the sheriff,, require him to discharge the imprisoned debtor from custody; and while he cannot thereafter seize the person of such debtor upon another body execution, it is provided that he may otherwise enforce-such judgment as if the execution from which the debtor was discharged had been returned without his having been taken. In this case the defendant had been in custody for much more-than thirty days, and the plaintiff could have given directions to the-sheriff for his absolute discharge and still retained his judgment; so-that, whatever view we take of this case, the judgment against the defendant has not been satisfied or discharged by the plaintiff’s-action, and, therefore, the defendant’s motion was properly denied by the Special Term. The order appealed from should be affirmed. All concurred, 'except Putnam, J., not sitting. Order affirmed, with ten dollars costs and disbursements.