155 N.Y.S. 536 | N.Y. App. Term. | 1915
On July 2, 1915, the plaintiffs obtained an order of arrest against the defendant. On September 23, 1914, an order was made discharging the defendant from arrest. In ordering the discharge the learned trial justice rendered an opinion in which he stated, “ There is no question that the plaintiffs herein on the 2d day of July, 1915, were entitled and justified in obtaining the order of arrest. There is likewise no- doubt that the discharge of this defendant is based upon a highly technical ground and is intended in nowise to reflect upon the conduct of the plaintiffs and their attorney. The court, however, is free to confess that this power is exercised with much personal satisfaction.”
The grounds of the court’s personal satisfaction are, that the innocent family of the defendant has suffered by his imprisonment and that his imprisonment can serve no useful purpose. Obviously, if the plaintiffs, as is conceded, were entitled to their order of arrest, no hardship incidental to the execution of the order, and no opinion of the court as to the wisdom or lack of wisdom of the legislature in providing for such orders, can he regarded as any ground for discharging the defendant. The legislature has provided for arrest in civil actions in certain cases, and by section 572 of the Code has provided the grounds upon which the court must, in a proper case, order the defendant’s discharge, and, unless one of these grounds exists in
In some manner the plaintiffs’ attorney received this letter by mail and on July 13, 1915, he obtained an order ‘ ‘ that the within letter referred to in said affidavit and designated as an answer herein be filed in the office of the clerk of this court.”
On July twentieth the plaintiffs’ attorney served the defendant with a formal notice of motion returnable on the twenty-sixth for judgment on the pleadings. He supplemented this notice with a letter to defendant on July twenty-fourth, in which he wrote: “As you have no lawyer to advise you, I venture to suggest that you make arrangement to appear, in court at the appointed time and place where an opportunity will be afforded to you by the judge to be heard in opposition to the plaintiffs’ application.”
On July twenty-sixth this motion was granted on default. On August third a writ of inquiry was obtained directed to the sheriff’s jury. On August ninth, the first day thereafter on which the sheriff’s jury met, the plaintiffs’ main witness was out of the jurisdiction; on August sixteenth the inquisition on the writ was taken and returned and judgment was
The learned trial justice held that this letter constituted no answer because it was unverified. It is unnecessary now to consider whether, if a verification were necessary and the plaintiffs chose to waive this requirement, they would in any event have lost any rights under the order of arrest; for in this case no verification could be required. The complaint here clearly charged a crime and the defendant had, therefore, a right to rely on his constitutional privilege and refuse to verify his answer. See Kellogg v. Match Supply Co., 165 App. Div. 885; Thompson v. McLaughlin, 138 id. 711.
The plaintiff could, therefore, not refuse to accept the answer on this ground. The respondent, however, urges that even aside from this defect the letter was not an answer and was not intended as. an answer. Technically it was certainly not a valid answer. This is conclusively shown by the order for judgment on the pleadings. It shows, however, on its face that it was a “ reply to the complaint ” addressed to the court and intended by a defendant ignorant of the law to meet and defeat the complaint.
Under these circumstances the plaintiffs were certainly not bound to disregard it. They took exactly the proper course and treated it as an answer and
Order is therefore reversed, with ten dollars costs ■ and disbursements, and motion to discharge defendant is denied.
Order reversed.
