| N.Y. App. Div. | Mar 15, 1928
Order vacating and setting aside service of summons upon defendant Clyde E. Black reversed upon the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Concededly, this action is brought by plaintiff against defendant for a violation of the conditions of an undertaking given by defendant for the liberties of the jail of Kings county, after he had been taken into custody by the .sheriff of Kings county under a body execution. Concededly, he violated the conditions of the undertaking by escaping from the liberties of the jail by entering Queens county. This act upon his part constituted an escape, but it is provided by section 369-f of the Prison Law that in an action upon an undertaking for the jail liberties it is a defense that, before the commencement of the action, the prisoner voluntarily returned or was recaptured by or surrendered to the sheriff from whose custody he escaped. Since a summons served on a Sunday is void, and since his return would be a complete defense to an action brought upon the undertaking while he was within the jail limits, defendant frequently took advantage of Sundays to leave the liberties. We are of opinion that the conclusion reached by the learned Special Term is contrary to the evidence, and that the overwhelming weight of the evidence is that defendant was properly served with the summons at eleven-fifty-six p. m. on Saturday, April 16, 1927. Lazansky, P. J., Rich, Hagarty, Seeger and Carswell, JJ., concur.