DOWNEY v. CLUTE

DOWNEY v. CLUTE. N. Y. Supreme Court, First District, Special Term at Chambers; February, 1887. Arrest, etc., in civil cases; discharge six months after surrender.] A defendant who had been arrested on mesne process and realized upon the usual undertaking, surrendered himself in exoneration of the sureties, after a body execution upon the judgment subsequently recovered had been returned indorsed “ defendant not found.” Held, that he was entitled to his discharge under section 111 of the Code of Civil Procedure as amended by the act of 1886 (c. 672), after the lapse of six months from the time he surrendered himself to the sheriff. Motion that the defendant be discharged from the custody of the sheriff of the city and county of New York. Judgment was rendered in favor of plaintiff on January 16, 1886. An execution against the property of the defendant was issued to the defendant February 18, 1886, and returned unsatisfied March 27, 1886. An execution was also issued to the sheriff April 24, 1886, which was on the same day returned unsatisfied. On the 21st of April, 1886, an execution against the person of the defendant was issued, which was returned June 19, 1886, with the indorsement “ Defendant not found.” On the 20th of July, 1886, defendant surrendered himself, and the bail given by him under the order of arrest granted at the commencement of the action were exonerated, and he now applies to be discharged on the ground that he has been in actual custody for more than six months. [MAJORITY — Lawrence, J.] Lawrence, J. [after stating facts as above.]—It seems tó me that he is entitled to his discharge (see Laws of 1886, chapter 672, and the elaborate opinion of Justice Potter in People ex rel. Lust v. Grant [reported ante, 220]). As the actual custody of the defendant commenced on the 20th day of July, 1886, it is obvious that he has been imprisoned for more than six months. Motion granted and prisoner discharged.