Neresheimer v. Bowe

Van Brunt, J It is impossible, by an examination of this complaint, to determine whether the plaintiff in this action seeks to charge the sheriff as bail, or to recover damages for escape. All the allegations of the complaint prior to the clause which has been quoted in the foregoing [308] statement of'facts (ante, p. 302) would be equally necessary in an action for an escape, or in an action to charge the sheriff as bail. If it is sought to charge the sheriff as bail, the allegations contained in the complaint as to his escape are entirely irrelevant and redundant; if it is sought to recover, damages of the sheriff for an escape, the allegations in the complaint in respect to the failure of the bail "to justify are irrelevant and redundant. The defendant in this action has a right to know whether he is to be charged as bail, or whether it is sought to recover damages of the sheriff for an escape, because defenses may be pleaded to an action for an escape which cannot be set up in an action to charge the sheriff as bail. The objection that the order denying the motion is not appealable.is not well taken, as the motion made is one not resting absolutely in the discretion of the court below, but affects a material right of the defendant. The order appealed from should be reversed, with costs and disbursements to the defendant, to abide the final event.' Beach, J., concurred. •Order reversed, with costs to abide event.