Henry Hoyle, Respondent, v. Robert McCrea, Appellant, Impleaded with Fletcher Murray

Henry Hoyle, Respondent, v. Robert McCrea, Appellant, Impleaded with Fletcher Murray. Judgment debtor imprisoned, upon a body execution — a permission to visit Ms sick wife on condition that he will return the same day does not operate as a satisfaction of the judgment. A judgment debtor imprisoned under a'body execution who, upon representing that his wife was very sick, obtained permission from the judgment creditor to visit her upon condition that he would return to the jail limits on the same day, is estopped from asserting his release from imprisonment under such circumstances as a satisfaction of the judgment. Semble, that under the Code of Civil Procedure as now in force, the imprisonment of a person held under a body execution, in no event operates as a satisfaction of the judgment on which the execution was issued, except during the continuance of the imprisonment. Appeal by the defendant, Robert McCrea, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Clinton on the 14th day of January, 1899, denying his. motion to cancel and discharge of record a judgment against him and the defendant Murrray, upon which judgment such defendants had been imprisoned upon an execution issued against their persons. The defendants were arrested upon such execution on or about the'24th day of June, 1898, and held in Custody until on or about October 13, 1898. Upon'the request of the defend|ant McCrea, with the statement that his wife was very sick, that he desired to see her and return to the jail limits the same day, the plaintiff in the execution consented to his visiting his wife, upon the condition that he return upon the same day. The defendant never returned to the jail limits, and insists that such permission by the plaintiff was not only a discharge from imprisonment, but also operated to satisfy the judgment, Royal Corbin and J. P. Kellas, for the appellants. W. H. Dunn and H. L. Huston, for the respondent. [MAJORITY — Herrick, J.:] 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 constitutes 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.