Losaw v. Smith

• Parker, P. J.: . In People ex rel. Lawrenae v. Brady (56 N. Y. 182, 191) the court say : “We are óf opinion that the previous adjudications in proceedings on habeas corpus are no answer to a new writ issued on the application of the relator. * * * In this ease the relator is-restrained of his liberty, and a decision under one writ refusing to discharge him did not bar the issuing of a second writ by another court or officer.” In Matter of Quinn (2 App. Div. 103) the court say : “ It is settled law that,-With the.exception of a narrow class,of cases, such as the custody of infants, a decision on habeas corpus does not create an estoppel even upon renewals of the writ, and never operates asá former adjudication in other litigations.” • We .hold, therefore, _ that the order discharging ' Losaw from custody in the habeas corpus proceedings was not res ad/judicata as against the defendant.in this action. , The question remains whether the trial court'was correct in holding that the imprisonment of the plaintiff upon the execution issued by the defendant was, as matter of law, a wrongful and unlawful act. It is very clear that in the action which Smith brought against Losaw before the justice, if he had recovered he could have execution against the. person of Losaw for. the recovery and for costs. The nature of the. action, it being for trespass on real estate, warranted such an arrest. (Code Civ. Proc. § 549, subd. 2; People ex rel.. Gates v. Fargo, 4 App. Div. 544.) \ It also seems very clear that; the judgment of the County Court reversing on appeal the judgment of the justice and rendering Costs against Losaw, but not directing any new trial thereof, was a-final judgment in the action against, him. Although it is true that it does not determine whether Losaw did or did -not commit the wrongs which jm such action are charged against him, it put. an end to that litigation. The judgment, therefore, is clearly, one upon which execution against the person. may issue under the provisions of section 1487 of the Code of Civil Procedure, as that section has frequently been interpreted by the courts. In Safer v. Haft (86 [757] App. Div. 284, 286) it is stated as follows : “ It appears to be settled by authority] however, that in an action of tort where the defendant is liable to arrest and imprisonment if the plaintiff succeeds, a judgment in favor of the defendant for costs may be enforced by execu. tion against the person; ” and the cases of Philbrook v. Kellogg (21 Hun, 238) and Miller v. Woodhead (52 id. 127) are cited as authority for the proposition. The former case goes to the extent of holding that under section 1487, in an action to recover damages for conversion of personal property, where the costs exceed the damages, and -judgment for the excess is entered in favor of the defendant, an execution for such excess may be issued against the person of the plaintiff; and in the latter case it is held that, under the same section, execution against the person of the guardian of an infant plaintiff may be issued to collect costs adjudged to the defendant u pon, the dismissal of the complaint in an action for negligently injuring the 'infant. (See, also, Davids v. Brooklyn Heights R. R. Co., 104 App. Div. 23.) It is also further said in Safer v. Haft (supra) that section 15 of the Code of Civil Procedure, which was there relied upon by the plaintiff as exempting him from such an arrest, expressly excepts costs “ awarded by a final judgment from the prohibition against arrest and imprisonment for the non-payment of costs.” It is urged by the respondent’s attorney that it has never been shown th-at • Losaw has -committed any wrong, and that hence it is an outrage to imprison him because he cannot pay the costs of the action that was brought against him. This claim was urged and recognized in Parker v. Spear (62 How. Pr. 394), but it was there said that “ the judiciary have no power to make the law,” and hence the rule was there enforced as it was found to have been enacted. With this sentiment I heartily agree. The decisions above cited clearly establish the proposition that section 1487 of the Code of Civil Procedure applies to the collection óf costs as well as to the claims for damages recovered, and in each one of them the execution ran against the person of one who had not been adjudged guilty of any wrongful act. No law has as yet been enacted in this State relieving either party in an action like, this from the collection of costs by execution against the person, provided such costs were awarded by final judgment in the action. On the contrary, by the [758] provisions of section 15 of the Code of Civil Procedure the Legislature indicated its purpose. not to do so, and hence the wrong of which the respondent here complains can be relieved only by legislative and not judicial action. I am of the opinion that the trial court erred in holding that the imprisonment of Losaw was wrongful, and that for such error this judgment must be reversed. All concurred, except Chase, J".* dissenting in an opinion ; Houghton, J., not voting, not being a member of this court at the time this decision was handed down.