In re Irving

1 How. Pr. (n.s.) 236

• Court: City of New York Municipal Court
• Decided: March 15, 1886
• Status: Published

Opinion

Hall, J.

I do not see bow tbe court can proceed in tbis •matter. It appears from tbe papers that tbe debtor is in tbe ■ custody of Alexander Y. Davidson, who up to tbe 1st of January last was sheriff of tbe city and county of New York; and a certificate is attached to tbe petition showing tbe imprisonment ■ of tbe debtor, and signed by Alexander Y. Davidson, sheriff, by Daniel E. Finn, deputy sheriff, dated February 17, 1886.

Section 184 of tbe Code of Civil Procedure requires, tbe former sheriff, within ten days after tbe service of a certificate upon him by tbe new sheriff, to deliver all prisoners and all .papers relating to their custody or imprisonment to tbe incoming sheriff.

It does not appear whether or not a certificate was served by the new sheriff upon tbe former one; but as tbe powers of tbe former sheriff do not cease until after tbe service of such certificate (sec. 183, Code), and as tbe new sheriff is now performing ■the duties of bis office, I think it may be safe to assume that tbe certificate has been served, and tbe powers of tbe former sheriff have ceased, except as provided by law.

More than ten days have expired since tbe new sheriff as.-sumed bis office, and yet it does not appear that tbe imprisoned •debtor has been assigned to him, but on tbe contrary it appears that be is in tbe custody of tbe late sheriff, and tbe late sheriff’s duties, powers and functions (except those specified by law) 'having ceased, it cannot be said that tbis defendant is imprisoned, especially as he is on the jail limits, and not actually con- - fined.

“ The power of the old sheriff over prisoners ceases after ten days, and the new one has no power unless they are assigned to him” Huids agt. Doubleday, 21 Wend., 223).

“An outgoing sheriff who neglects to deliver over a prisoner to his successor is liable to the plaintiff in the execution as for an escape” (French agt. Willett, 10 Abb., 99).

Therefore, to act upon this petition in the absence of proof that the prisoner has been duly assigned to the new sheriff might seriously impair the rights of the execution creditor as against the late sheriff or his bondsmen.

The objection to the jurisdiction of the court to entertain this proceeding in any event is not well taken; the Code (sec. 2201) expressly provides that it may be taken in the court out of which the execution is issued.

The proceeding must be dismissed, but without prejudice to > renew upon proof that the debtor has been assigned to the new sheriff; no costs.