Goupil v. Simonson

3 Abb. Pr. 474

• Court: New York Supreme Court
• Decided: November 15, 1856
• Status: Published

Opinion

Davies, J.

The order of arrest was made by a justice of this court, directed to the sheriff of the county of Kings, commanding him to arrest both defendants; Lott Simonson, being resident in Brooklyn, and the defendant Isaac Simonson, at Jamaica, in the county of Queens.

The order of arrest was granted on November 11, and it would appear that it was left with the sheriff of the county of Kings on that day.

. On the night of the 11th a deputy of the sheriff went to Jamaica, and represented to Isaac Simonson that process was issued against his son Lott, and that he would be needed at Brooklyn to aid him. He left home for this purpose about two o’clock on the morning of the 12th, and went to the Brooklyn jail, expecting there to find his son. He ascertained that he was not under arrest, but he was himself immediately arrested and confined in jail.

It is but too apparent that he was enticed within the bailiwick of the sheriff of Kings county that he might be arrested. It is manifest that the whole proceeding was a trick for the purpose of giving the sheriff of Kings county an opportunity to arrest the defendant.

I concur entirely with the Superior Court in its view as expressed in Carpenter v. Spooner, (2 Sandf. S. C. R, 717). “This court,” they say, “will not sanction any attempts to bring a party within its jurisdiction by fraud and misrepresentation. And where by a false statement or fraudulent pretence a party is brought within the jurisdiction, and there served with process, the service will be set aside. If a party who is not within the jurisdiction voluntarily comes within it, he thereby becomes amenable to the process of the court, but not unless he comes voluntarily. The court will not countenance any proceeding of the nature adopted in this case.”

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I cannot sanction the means adopted in this to induce the defendant Isaac Simonson to come within the bailiwick of the sheriff of Kings county, that he might be arrested, and he must be discharged with costs.

And compare Seaver v. Robinson, (3 Huer, 622; S. C., 2 Ante, 554.)