Savage v. Sully

Guy, J. Action to recover three instalments of $200 each under a.contract by which, at the special instance and request of the defendant, the plaintiff discharged the defendant’s husband from the sheriff’s custody under a body execution for $17,380.16, and extended his time to pay the ■judgment, upon the payment of $500 down and $200 on the sixteenth of each month thereafter, until the entire amount of the judgment with interest was paid, upóla which extension agreement the defendant’s husband had paid $2,700. [99] The defense relied on at the trial was based upon allega-, tions of new matter that the defendant’s husband came to the city to testify as a witness in a pending action between Tiffany & Company and the defendant; that the levy of and the arrest under the body execution was unlawful because the husband was privileged and protected from arrest; that the defendant, while ill and in great anxiety of mind, was, by reason of the alleged illegal acts of plaintiff, coerced to execute the extension agreement in ignorance of the alleged illegality of her husband’s arrest. A further defense, not relied upon at the trial, was that the defendant’s husband procured an extension of his time to pay each instalment of $200, by agreeing to defer the payment of all instalments after February 25, 1911, for one month, without plaintiff’s consent. The pleadings admitted by non-denial the due issue of the body execution, the arrest thereunder, the discharge of the defendant’s husband by reason of the extension of his time to pay the judgment by and with the consent of the plaintiff. There was no proof or allegation that the execution was ever vacated or set aside. The non-payment of the instalments sued for was admitted, and the payment of $2,700 thereunder was proved. At the close of the trial defendant admitted that there was only a question of law. The court ruled' that the admissions in the pleadings precluded any consideration of what Mr. Sully’s personal privileges might have been, if he had not waived them, and directed a verdict for plaintiff. The admission by non-denial of the due issue of the body execution and of the arrest .thereunder was not qualified by the allegations of new matter of the alleged unlawfulness of such arrest.' Assuming that it was the personal privilege of the defendant’s husband to have had the order of arrest vacated and to have then forthwith returned to Washington, he and she, on the contrary, preferred that he should be enabled to do business here free from arrest on execution under and pursuant to the joint extension agreement- to pay the judgment of $17,380.16 in instalments of $500 down and $200 a [100] month thereafter. Such an extension was a waiver of any personal privilege of defendant’s husband to avoid the arrest. Moreover, he cannot transfer his personal privilege to his wife; nor can she act as his champion, while he retains all the benefits of the exténsion agreement. Bianchi v. Leon, 138 App. Div. 215, 223-228; Van Campen v. Ford, 6 N. Y. St. Repr. 139, 140; Farmer v. Walter, 2 Edw. Ch. 601; Eder v. Gildersleeve, 85 Hun, 411, 414, 415; affd., 155 N. Y. 672; Carr & Hobson v. Sterling, 114 id. 558, 562— 565; Sebring v. Stryker, 10 Misc. Rep. 289. Judgment affirmed, with costs. Seabury and Cohalan, JJ., concur. Judgment affirmed.