14 N.Y.S. 540 | N.Y. Sup. Ct. | 1891
Lead Opinion
It appears that the order of arrest in question was-originally granted by Mr. Justice Kennedy, and a motion made to vacate the order upon the papers upon which it was granted before him, which motion was denied without prejudice to a renewal. The second motion was made before Mr. Justice Kennedy upon the papers upon which the order was granted and certain additional affidavits. This motion was also denied upon the merits without prejudice to defendants’ right to renew it at special term. A third motion was then made before the same judge at the Onondaga special term, although the venue in the action was laid in New York county. The plaintiff objected to the hearing of the motion out of the first judicial district on the ground that the action was triable in said district. This objection was overruled by the court; and it thereupon, notwithstanding such objection, proceeded to hear the motion. It is now urged -upon this appeal that the objection was well taken. It is undoubtedly true that all motions in cases in the first judicial district must be made in that district; but, as the motion in. question was not a motion of right, but leave to make the same had been, granted as a favor, the court making the order had a right to prescribe that the motion might be made elsewhere than in the district in which the ease was triable. It is true the phraseology of the order does not necessarily bear this construction, but, it having been so interpreted by the judge who made the same, it undoubtedly was his intention to allow the motion to be made-before him at special term; and with his interpretation of his own order we-do not think we ought to interfere. This action was one of replevin to recover possession of 22,899 bushels of malt, made of New York and western barley. Upon the usual affidavits and undertaking a requisition was issued to the sheriffs of Onondaga and Madison counties to replevy the same. Both, sheriffs made return that they could not take the property, since it had been, eloigned, sold, removed, and disposed of. The plaintiff thereupon amended, its complaint by setting forth the fact that the malt had been sold, removed, and disposed of by defendants, so that the same and no part thereof could be-found and taken by the sheriff, with the intent that it should not be so found and taken, and to deprive the plaintiff of the benefit thereof. The defendants-answered this complaint, alleging an agreement between the plaintiff and defendants to malt for it 50,000 bushels of barley, and deliver such malt to the-plaintiff, and that they performed this agreement according to its terms, and subsequently malted for the plaintiff about 30,000 bushels of barley; and that they remained indebted to the plaintiff in the sum of $4,500, and prayed, judgment that the complaint might be dismissed except so far as to allow th¿plaintiff to take judgment against them for the sum of $4,500 with costs. Subsequently plaintiff procured an order of arrest against both defendants upon the ground that the defendants had removed the chattels sought to be recovered in the action with intent that they should not be found or taken,, and depriving the plaintiff of the benefit thereof. A motion to vacate said, order as above mentioned was made, and from the order finally vacating the order of arrest this appeal is taken.
It appeared that on the 22d of October, 1889, the defendants entered into a, contract with the plaintiff, whereby they agreed to malt during the season-of 1889-90 50,000 bushels of barley for the plaintiff in their malt-houses-
But we think that the amount of bail required in the order of arrest was ■excessive. It seems to have been assumed by the learned judge in the court below that there is some difference in the object of giving bail in a civil and criminal suit, for he says: “Upon an indictment for any crime the accused party is entitled to bail not excessive, but for his personal appearance only. Upon an order of arrest in a civil action bail of this character is not available to the defendants, but instead that required is beyond their ability to furnish, ” ■etc. We had supposed that all that bail in a civil action was given for was to secure the appearance of the defendant in answer to the execution against his person; and that bail is given in a criminal action for the purpose of securing the appearance of the defendant at the trial of the indictment, and subjecting himself to the judgment of the court,—precisely the same thing. Now, since the virtual abolition of imprisonment for debt, making the longest term of imprisonment less than that which would be imposed on an indictment for misdemeanor, bail in a civil action should be in some degree proportioned to the penalty whicli might be inflicted on the defendant who has become subject to arrest, and does not depend upon the amount of the ■claim, because, be the claim great or small, the defendant cannot be imprisoned as long as he might be upon conviction upon an indictment for almost ■any kind of misdemeanor. We think, therefore, that the order appealed from ■should be reversed, with $10 costs and disbursements.
Concurrence Opinion
(concurring.) The order of arrest was made by Mr. Justice Kennedy, and that entitled the defendants to move before him as such justice, without notice and also with notice to the plaintiff to vacate it. Code Civil Proc. § 568. They made each of these motions, and they were denied by Justice Kennedy. In the denial of the last motion the order directed that it was “ without prejudice to defendants’ right to renew the same at special term.” The section just referred to did not provide for the making of that motion at a special term held in his own district or by Justice Kennedy. It ■authorized him at a special term held by himself to hear and decide an appli
Lawrence, J., concurs.