Gallagher v. O'Neil

21 N.Y. St. Rep. 161 | City of New York Municipal Court | 1888

McAdam, C. J., (after stating the facts as above.)

If it appears upon the return of a writ of habeas corpus that the prisoner is in custody by virtue of a mandate in a civil action for contempt, he may be discharged when the mandate is defective in substance required by law, rendering it void, or when it was issued in a case not allowed by law, (People v. Riley, 25 Hun, 587;) and when one is discharged on habeas corpus, a rearrest is unlawful, the matter being res- adjudicata. Wells, Bes. Adj. § 421. The defendant was therefore secure against further proceedings under the illegal order appealed from, without prosecuting this appeal, but this circumstance does not prevent Jiim from having his appeal considered. We concur in the disposition made

■ of the order by the supreme court, and agree that it was granted in excess of authority, is defective in substance, and was properly adjudged to be void, for the following among other reasons: The title to the property was in • dispute, and an order for delivering it over to the receiver could not be made. Bank v. Pugsley, 47 N. Y. 368; People v. Conner, 15 Abb. Pr. (N. S.) 430. Where property is in possession of a third person claiming title, no matter how fraudulent the transfer, the court cannot order it to be delivered up, (Town v. Insurance Co., 4 Bosw. 683;) the proper remedy being an action by the receiver to test the question of ownership, (Rodman v. Henry, 17 N. Y. 482.) There was no power in the court below to ignore this disputed question of title, and to order the judgment debtor to deliver over property not confessedly his. Bank v. Pugsley, supra. This objection goes to the very foundation of the judge’s authority to make the order, makes it open to .a motion to vacate it, or to attack upon habeas corpus, as unauthorized in the first instance. Where a proper conviction has .been had, the court may issue a new commitment, omitting the illegal and improper portions of the old pro- • cess, but cannot retry the defendant for the same offense. Snyder v. Van Ingen,9 Hun, 569; Murad v. Thomas, 66 How. Pr. 100, 30 Hun, 82; People v. Grant, 13 Civil Proc. B. 183. Thein firmity in this case'consists of more than an irregularity, for it goes to the root of the proceeding, and is incurable by*new order or otherwise. The order directed the defendant to be committed to jail for his refusal to deliver the saloon to the receiver, which order . assumed the ability of the defendant to make such delivery; yet the judge ignored that portion of section 2285 of the Code, which provides that “ where the misconduct proved consists of an omission to perform an act or duty, which is yet in the power of the offender to perform, he shall be imprisoned ■only until he has performed it, and paid the fine imposed;” and directed that • the defendant be imprisoned until he paid a fine of $500 and costs. There was nothing before the judge warranting the imposition of any such fine. There was no proof of loss to the creditor, and no assessment of damages; and .for all that appears the fine was arbitrarily imposed, without regard to the legal loss or indemnity required. This is unauthorized. Sudlow v. Knox, 7 Abb. Pr. (N. S.) 411; De Jonge v. Brenneman, 23 Hun, 332; Coal Co. v. Hecksher, 42 Hun, 534; Fenlon v. Dempsey, 2 N. Y. Supp. 763, (Dec. 14, 1888.) True, the court may summarily fine a delinquent $250 for disobedience • to an order, in addition to costs, (Code, § 2284;) but where the fine goes beyond this, and is for the indemnity of the party, the loss or injury must be legally ascertained and assessed, that the court may know what indemnity is necessary, (vide cases before cited.) Where the commitment is made in a case falling under the first part of section 2285 of the Code, i. e., where the party .yet has the power to perform the act required, the limitation as to the duration of imprisonment (not exceeding six months) does not apply, because the ,party has it in his power to terminate the imprisonment at pleasure by complying with the act required.. In re Haigh, Supreme Ct., Lawrence, J., Daily Beg., Jan. 20, 1887. So that the commitment was not irregular in failing to limit the duration of the imprisonment to six months. The real difift- . culty is that the court required the defendant to perform an act he had not • the ability to comply with, as the property required to be delivered up was • claimed by the wife of the defendant, and Mrs. Conway, who asserted title to it; and he as their employe could not be legally required to deliver up their property until it was first decided in an action to be brought by the receiver that the property was not theirs, but his. There is no legal ground upon •which the order can be sustained, and it must be reversed, with costs.

Yehrbas and Browne, JJ., concur.