154 A.D. 584 | N.Y. App. Div. | 1913
Judgment affirined, with costs, on opinion of Greenbaum, J.
Present — Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ.
This is an action against a sheriff of the county of New York for an escape. On November 1, 1907, the plaintiff recovered a judgment of $1,487.50 in the City-Court of the city of New York against one Vincent C. Corrier and another, and upon the return of execution unsatisfied instituted proceedings supplementary to execution against the defendant Corrier. In the course of these proceedings an order was entered requiring the judgment debtor to deliver certain property within a time therein specified to the receiver appointed in the proceedings. The judgment debtor failed to obey this order, and upon motion of the judgment creditor a further order was entered directing the judgment debtor to turn over the property in question, or, in default thereof, that the motion to punish for contempt be granted. Thereafter, on June 9, 1908, upon proof of the debtor’s non-compliance with the order, an order was entered adjudging the debtor guilty of contempt, fining him the amount of the judgment and costs of the proceedings, and directing that he be confined to jail until such fine be paid or discharged according to law. Upon appeal by the debtor this order was affirmed. (Goldreyer v. Shatz, 114 N. Y. Supp. 339.) On the 24th of March, 1909, the debtor was taken into custody by the sheriff and lodged in jail. On the 23d of April, 1909, the debtor moved ex parte and without the knowledge of the plaintiff tó one of the justices of the City Court of the city of New York for an order discharging him from imprisonment, and by order entered on that date the motion was granted. Acting thereunder the sheriff discharged the debtor from jail. The sole question presented is whether the failure to give notice of the application for a discharge to the judgment creditor rendered the order void for lack of jurisdiction, and, therefore, insufficient to protect the sheriff in acting thereunder, or whether such failure constituted merely an irregularity which might be sufficient ground for the vacation of the order upon direct motion. In discharging the judgment debtor the court acted under the authority of section 775 of the Judiciary Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35) which provides as follows:
Judgment for defendant, with costs.
Code Proc. § 414; now Code Civ. Proc. § 799.— [Rep.