Horowitz v. Olenick

Patterson, J.: The defendant was arrested upon an order issued in an action to recover the possession of certain chattels, it having been made to appear to the court that he had concealed, removed or disposed of such chattels so that they could not be found by the sheriff, and that such .concealment or removal was made with intent that such chattels should not be found or taken and to deprive the plaintiffs of the benefit of the writ. The order directed that the defendant be held to bail in the sum of $4,000. The defendant was taken into custody and thereupon gave an undertaking executed by himself and two sureties, which contains the following clauses, namely: “ Whereas, the above bounden Moses L. Olenick is now a prisoner in the custody of the above named William F. Grell, sheriff of the county of New York, by virtue of a certain order of arrest, and is [284] admitted to the liberties established for' the jail of the said county of Hew York according to law; “ How, therefore, the condition of the above obligation is such that if the said Moses L. Olenick shall remain a prisoner, and shall not at any time or in any manner escape or go without the liberties of the jail of the said county of New York, until discharged by due course of law, then the obligation to be void, or else to be and remain in full force and virtue.” The undertaking in this case' was given pursuant to the terms of section 149 of the Code of Civil Procedure, which provides that a person in the custody of a sheriff by virtue of an order of arrest or of an execution in a civil action or in consequence of a surrender in exoneration .of his bail, is entitled to be admitted to. the liberties of the jail upon delivering to the sheriff an undertaking as prescribed in the next section. The undertaking in this case complied with the requirements of section 150 of the Code of Civil Procedure, including the term that the defendant shall remavn a prisoner, but upon its presentation to the court, the plaintiffs gave notice to the sheriff that they excepted to the form ■ of the undertaking given by the defendant and to the sufficiency of the sureties thereon. The court overruled the objection to the form of the undertaking, and from that order the present appeal is taken. It is insisted by the appellants that the undertaking is insufficient and that the only proper undertaking to be given was one conforming -to the requirements of section 575 of the Code of Civil Procedure. That section of the Code must be read in connection with the preceding sections, which refer to discharging, upon bail, or deposit, a defendant who is under arrest. Section 573 provides: “ The defendant at any time before he is in contempt * * * must be discharged from arrest either upon giving bail, or upon depositing the sum specified in the order of arrest. * * * ” Section 575 provides that “ The defendant may give bail, by delivering to the sheriff a written undertaking, in the sum specified in the order of-arrest, executed by two or more sufficient bail, stating their places of residence and occupations, to the following effect :***%. If the action is to recover a chattel, that the defendant will deliver it to the plaintiff, if delivery thereof is adjudged in the action, and will pay any sum recovered against him in the action.” [285] The section cited relates to a discharge of the defendant from the custody of the sheriff. It refers to his being fully set at large and delivered from the process upon his giving adequate and satisfactory security for any judgment that may be recovered against him, either as to the specific delivery of a chattel or the payment of a sum of money. A person giving an undertaking for the jail liberties is not discharged from arrest, nor generally set at large. As said in Peters v. Henry (6 Johns. 123), prisoners in execution are within the prison whilst on the limits ; and in Dole v. Moulton (2 Johns. Cas. 205): “ In all cases, therefore, where the security is offered, the four walls of the prison, according to the ancient law, are enlarged to the extent of the limits assigned by the statute. * * * So that the limits are to be considered, in such case, as the jirison.” And in Develin v. Cooper (84 N. Y. 410), “ Being out of jail on the liberties is, in the judgment of the law, being in prison.” If these statements are correct, then in judgment of law it cannot be said that this defendant has been discharged. Unless section 575 of the Code of Civil Procedure is to be construed as depriving a defendant under arrest, in an action to recover a chattel, of the benefit of section 149 of the Code of Civil Procedure, there is no conflict between those sections. This defendant has not been held to bail so as to effect his discharge. He is still a prisoner. The defendant was entitled to the liberties of the jail, and the undertaking given for the purpose of securing his right was sufficient in form. The order should be affirmed, with ten dollars costs and disbursements. Van Brunt P. J.. McLaughlin, Hatch and Laughlin, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.