Lowman v. Billington

65 Misc. 111, 119 N.Y.S. 825

• Court: New York Supreme Court
• Decided: November 15, 1909
• Status: Published

Opinion

Clark, J.

On the 3rd day of December, 1907, this plaintiff recovered a judgment in the Supreme Court against Max J. Pedrick, Joseph Kostecki and Kellie Pedrick, in the sum of $643.50, damages and costs, for wrongfully and unlawfully selling to her husband intoxicating liquors after having received written notice forbidding such sale.

On the 5th day of December, 1907, an execution on said judgment was issued against the property of the defendants in said action, which was returned wholly unsatisfied; and, on the 16th day of December, 1907, an execution against the person of said Max J. Pedrick was issued on said judgment and delivered to this defendant as sheriff of Steuben county, Avhereby he was required to arrest the said Max J. Pedrick and commit him to the Steuben county jail until he should pay said judgment, or until he was discharged according to law. After receiving said execution, this defendant arrested said Pedrick and committed him to the Steuben county jail and had him in custody up to the 28th day of December, 1907, when a writ of habeas corpus granted by the surrogate of Steuben county, acting as county judge, was served upon this defendant, commanding him to bring said Max J. Pedrick before the said surrogate acting as county judge at chambers in the village of Bath, N. Y. On that date, in obedience to the requirements of said writ, this defendant produced the body of Max J. Pedrick before the surrogate of Steuben county, acting as county judge, and made return that said Pedrick was in his custody by virtue of a body execution against said Pedrick which had been issued by E. C. English, attorney for the plaintiff in the action against Pedrick et al., above referred to, and that he was still in defendant’s custody under said mandate.

It appears that no notice of the application for the writ of habeas corpus had been served on the plaintiff or her attorney; and, to give the plaintiff ample opportunity to be represented and heard in said habeas corpus proceedings, the said surrogate acting as county judge, when the aforesaid writ was returned, December 28, 1907, adjourned the proceedings until the 2d day of January, 1908, at the courthouse in the city of Coming, and directed that notice of the adjournment of the habeas corpus proceedings should be served personally upon E. C. English, plaintiff’s attorney, that day, and that such service should be due and timely. In pursuance of said direction, notice of said habeas corpus proceedings and adjournment was that day served upon said attorney for the plaintiff. At the same time, December 28, 1907, and during the pendency of the habeas corpus proceedings, the said surrogate acting as county judge made a written order committing Max J. Pedrick, the relator, to the custody of his attorney, Thomas E. Bogers, Esq. On the adjourned day of said proceedings, the plaintiff appeared specially by counsel and raised various objections, and the matter was held open to give counsel for the relator an opportunity to file a brief; but none was ever filed, and, on the 6th day of May, 1908, the said surrogate acting as county judge made an order dismissing the writ of habeas corpus, and remanded the relator, Max J. Pedriek, back to the custody of this defendant, sheriff of Steuben county, to be detained by him in the jail of said county under the body execution which had been issued to him; and relator’s attorney, Thomas F. Rogers, was directed to surrender said relator to this defendant as sheriff of Steuben county, within twenty-four hours after the service on him of a copy of the order dismissing the habeas corpus proceedings.

There was considerable delay on the part of relator’s attorney in producing his client, owing, as it was stated, to his inability to get into communication with him; but finally, on the 29th day of December, 1908, the relator, Max J. Pedriek, was produced and turned over to the custody of this defendant as sheriff, who held him under the body execution above referred to for a period of some six months, and until he was legally discharged, the relator not having been in the custody of the defendant either in the jail or in the jail limits from the 28th day of December, 1907, to the 29th day of December, 1908, inclusive, the defendant having turned the relator over to the custody of his counsel December 28, 1907, in pursuance of the written order of the surrogate acting as Steuben county judge, and the relator having remained in the custody of his counsel from that time until he was returned to the custody of the sheriff, December 29, 1908.

Plaintiff now brings this action against the sheriff for damages, claiming that the defendant as such sheriff permitted said Max J. Pedriek to escape and alleging that the orders of the surrogate acting as county judge, both with reference to bringing Pedriek before him, and also ordering him in the custody of his counsel, were absolutely null and void, because said surrogate had no power or authority to issue said orders, or either one of them.

The plaintiff further claims that the writ of habeas corpus was improperly granted; that the petition upon which it was granted was entirely insufficient,

First. Did the surrogate in making the orders above referred to act without authority ? Prior to January 1, 1884, the duties of county judge and surrogate in Steuben county had been performed by one person; but, by chapter 309 of the Laws of 1883, the office of surrogate of .Steuben county was created, and it was separate from the office of county judge, and the officer who performed the duties of surrogate was to be separate from the county judge. That law, chapter 309 of the Laws of 1883, consisted of four sections. The first section provided that, after January 1, 1884, an officer to perform the duties of surrogate of Steuben county should be chosen separate from the county judge. Section 2 of that act was as follows: “ The said surrogate shall, within said county, possess, and upon proper application must exercise, all powers conferred by law upon the county judge, at chambers or out of court.”

Section 3 of said act provided for the election of the surrogate at the general election in 1883; and section 4 fixed the salary to be paid to the surrogate, and also fixed the salary of the county judge.

The contention of the plaintiff is that, long before the surrogate granted the writ of habeas corpus, above referred to, chapter 309 of the Laws of 1883 had been repealed, and that, consequently, the surrogate’s granting of said writ and all of his acts in said habeas corpus proceedings were without authority and were null and void.

If it is true that said act was repealed, as claimed by plaintiff, then the surrogate’s orders would be of no force, and this defendant could not avoid liability for damages for an escape; for, if the surrogate’s orders were made without authority and were void, they would not protect the sheriff, however innocent he may have been in the transaction. I am compelled to disagree with the learned counsel for the plaintiff in his contention that chapter 309 of the Laws of 1883 had been entirely repealed when the surrogate entertained the habeas corpus proceedings.

The fourth section of chapter 309 of the Laws of 1883 was distinctly repealed by chapter 686 of the Laws of 1892. By chapter 548 of the Laws of 1896, which was a repealing act, a great many statutes were repealed. When an entire act was repealed the word “All ” was printed in the last column of the repealing act. When certain sections of an act were repealed, those sections were distinctly specified; as, for instance, Laws of 1882, chapter 409, sections 68, 69, were repealed, both being specified; but with reference to chapter 309 of the Laws of 1883, which plaintiff contends was repealed by section 548 of the Laws of 1896, it was printed as follows:

Laws of Chapter. Sections.

1883 ....................... 309 1-3

Plaintiff contends that it was the legislative intent to repeal sections 1 to 3 inclusive, and the defendant disputes that idea. This very repealing act, chapter 548, Laws of 1896, distinctly states that of the laws enumerated that portion specified in the last column is repealed. The Legislature did not specify section 2 of chapter 309 of the Laws of 1883 as being repealed. It specified sections 1 and 3, and they were repealed by that act. If it had been the intention of the Legislature to repeal section 2, the figure 2 would have been placed between the figures'! and 3, instead of a hyphen.

To further show that it was not the intention of the Legislature to repeal section 2 of chapter 309 of the Laws of 1883, because it was not specified, reference is had to the repealing section of chapter 908 of the Laws of 1896, passed by the same Legislature, with reference to chapter 659 of the Laws of 1886, that repealed “ Sections 1, 2, 3, 5, 6,” specifying the sections repealed as here indicated. There is no question as to what the Legislature meant in that matter. It meant to repeal sections 1, 2, 3, 5 and 6 of chapter 659 of Laws of 1886. By the same act it repealed certain portions of chapter 409 of the Laws of 1882, and in the column of sections repealed it said “ 312—327, inclusive.” It is clear that the Legislature intended to repeal sections 312 and 327 of that act and every section between those numbers, but, with reference to chapter 309 of the Laws of 1883, that same Legislature never specified that section 2 was intended to be repealed, nor did it use the word “ inclusive ” after saying in the column of sections repealed “ 1-3.” If the word “ inclusive ” had followed, as it did in chapter 908 of the Laws of 1896, when the same Legislature repealed certain sections of chapter 400 of the Laws of 1882, it would have been clear that the legislative intent was to repeal sections 1, 2 and 3; but when section 2 was not specified in the column of sections repealed, and when the word “ inclusive ” did not follow the figures 1-3, it cannot be construed that the Legislature intended to repeal section 2. But, if there was any doubt about the fact that it was the intent of the Legislature to leave section 2 of chapter 309 of the Laws of 1883 unrepealed, that doubt was removed by article 16 of the Oonsolidated Laws passed by the Legislature of 1909, when among laws repealed it says:

1883 .......................... 309 All

It must be borne in mind that the fourth section of chapter 309 of the Laws of 1883 was repealed by chapter 686 of the Laws of 1892; and, if it was the intention of the Legislature to repeal the remaining three sections of that act by section 548 of the Laws of 1896, they would have used the word “All,” showing that the act was all repealed, or else they would have distinctly specified the sections that were to be repealed, including section 2. They specified sections 1 and 3, but did not specify section 2. But the fact that, by the Oonsolidated Laws passed by the Legislature of 1909, all of .chapter 309 of the Laws of 1883 is repealed, requires the construction that section 2 of chapter 309 of the Laws of 1883 had never been previously repealed, but was in full force at the time the surrogate of Steuben county, acting as county judge, entertained the habeas corpus proceedings above referred to.

The- Legislature never having specified that section 2 was repealed, the only way it could be held that it was repealed would be by implication, and repeals of statutes by implication are not favored by the courts. 12 Abb. Cyc. Dig. 228; Mark v. State, 97 N. Y. 572; People ex rel. Olcott v. House of Refuge, 22 App. Div. 254.

It cannot be claimed that this plaintiff has been harmed any by the intervention of the surrogate. The only difference was that she had Pedrick imprisoned under the body execution for six months from December 29, 1908, instead of from December 28, 1907. He evidently had no property and could not pay the judgment, and the court should not construe this repealing clause of chapter 548 of the Laws of 1896 so as to work mischief and injustice to the defendant who acted in entire good faith in turning Pedrick over to the custody of his counsel upon orders of a court of competent jurisdiction which appeared perfectly regular upon their face. People v. Mallory, 46 How. Pr. 281.

Moreover, I am assisted in the construction that the law under which the surrogate acted had not been repealed, by the fact that it had been construed in a similar way by every surrogate of Steuben county since the passage of the act; and I assume to take judicial notice of the fact that, no't only the present surrogate, but his predecessors, had uninterruptedly construed the statute in question the same way, and had for years acted on the assumption that the law was still in force, and had acted in place of the county judge, as distinctly authorized by section 2 of chapter 309 of the Laws of 1883; and, when there has been a long and uninterrupted practice under a statute, as there has been under this statute, that fact affords not only a proper but a very strong rule of construction. Power v. Village of Athens, 26 Hun, 282; Ford v. Barber, 6 Barb. 60; Matter of Board of Street Opening, 12 Misc. Rep. 526, 534.

Chapter 309 of the Laws of 1883 was a special law, local in its application, for it had reference to the office of county judge and surrogate, in Steuben county; and it cannot be deemed amended or affected by any general legislation repealing statutes, unless the intention is perfectly plain. Mahon v. City of New York, 29 Misc. Rep. 251.

And, as above stated, it is not plain here that the Legislature intended to repeal section 2 of the statute under consi deration, bnt the very fact that it was repealed by the Consolidated Laws of 1909, together with the fact that the repealing section of chapter 548 of the Laws of 1896 does not specify section 2 as one of the sections repealed, is a sufficient reason to hold that section 2 under consideration was not repealed, and was never intended to be repealed until the passage of the Consolidated Laws of 1909.

In addition to that, chapter 548 of Laws of 1896 was a general repealing statute; and it is a universal rule of statutory construction that the later statute, general in its terms, will ordinarily not affect the special provisions of an earlier special statute, the presumption being that the special statute is to be construed as remaining an exception to the general statute, unless the legislative intent to repeal the prior statute is so clear and unmistakable that construction by the court is unnecessary. 26 Am. & Eng. Ency. of Law (2d ed.), 739.

So for the reasons above stated I am clearly of the opinion that section 2 of chapter 548 of the Laws of 1896 did not repeal section 2 of chapter 309 of the Laws of 1883, but that said section was in full force at the time the surrogate entertained the habeas corpus proceedings in question • and, that being so, he had the same powers as the county judge would have had under similar circumstances, and the latter would have had the same power, as a justice of the Supreme Court, at chambers or out of court, to entertain the habeas corpus proceedings if they had been brought before him. Code Civ. Pro. §§ 241, 772.

It being clear that the surrogate acting as county judge had authority to entertain the habeas corpus proceedings, the next question raised by the plaintiff is as to the sufficiency of the petition, writ, etc. So long as the surrogate had power to entertain the habeas corpus proceedings, his orders, regular on their face, and which have been acted on in good faith by a ministerial officer, will be a protection to that officer, even though erroneously granted. Wilckens v. Willett, 1 Keyes, 521; Perry v. Kent, 88 Hun, 407.

The surrogate having jurisdiction in the matter had a perfect right, pending the proceedings and before he finally dismissed them, to place the relator in the care of his counsel, as he did by his order of December 28, 1907. Code Civ. Pro. § 2037.

The case of Matter of Leggat, 162 N. Y. 437, relied upon by plaintiff, is not an authority to sustain his contention here, for the reason in that case the county judge discharged the prisoner in the habeas corpus proceedings without giving the person interested in continuing the imprisonment any notice whatever. In the case at bar the surrogate- was quite particular, when he ascertained that the writ of habeas corpus had been obtained without notice to the plaintiff or her counsel, to adjourn the proceedings, and required immediate notice to be given to plaintiff’s attorney, not only of the fact that the proceedings had been instituted, but of the day to which they had been adjourned, so that he might appear and protect the interests of his client; and such notice was served, in pursuance of the order of the surrogate, and on the adjourned day plaintiff was represented by counsel, and made various objections to the regularity of the proceedings. The surrogate did not undertake to discharge the prisoner and never discharged him, but simply placed him in the custody of his counsel during the pendency of the proceedings and, when he dismissed them, remanded him to the custody of the sheriff; and he was returned to the custody of that officer, after considerable delay, it is true, but he was returned and was kept in the custody of the sheriff in the jail of Steuben county, or in its limits, until he was legally discharged.

The difference between the Leggat case, supra, and the case at bar is so marked that it can have no bearing here. In that case the county judge discharged the prisoner; the person interested in the imprisonment never received any notice whatever of the habeas corpus proceedings. In the case at bar the plaintiff did have notice of all proceedings after December 28, 1907, and the surrogate never discharged the prisoner, but, after dismissing the habeas corpus proceedings, remanded him to the custody of the sheriff in the county jail from whence he had been taken -under the writ of habeas corpus.

By the petition in the habeas corpus proceedings Max J. Pedrick had challenged the power of the court to render the judgment which had been rendered against him and issue a body execution thereon; and he had a right to inquire into the proceedings and to see whether the execution was properly issued, by way of habeas corpus. People ex - rel. Tweed v. Liscomb, 60 N. Y. 559; People ex rel. Frey v. Warden, etc., 100 id. 24; People ex rel. Danziger v. House of Mercy, etc., 128 id. 180; People ex rel. Burroughs v. Willett, 15 How. Pr. 210.

It is unnecessary to pass upon the various questions raised as to the sufficiency of the writ of habeas corpus and the petition upon which it was issued, for the surrogate has already passed upon those questions; and so long as the writ served upon the sheriff and the order of December 28, 1907, directing him to place the prisoner in the custody of his counsel, were regular on their face, and there was nothing about them to put the sheriff on his inquiry, and he acted upon them in good faith, they must be deemed a protection to him; and his taking the prisoner before the surrogate in obedience to the writ of habeas corpus, which the latter had a right to issue, and then to turn him over to the custody of his counsel during the pendency of the proceedings, in pursuance of an order which the surrogate had a right to make, and which was regular on its face, would not constitute an escape. Wilckens v. Willett, 1 Keyes, 521; Martin v. Wood, 7 Wend. 132.

After a thorough examination of all the authorities bearing on this case and of the facts as disclosed by the evidence, I am convinced that the position of the plaintiff in this case is untenable; that, at the time of the institution of the habeas corpus proceedings in the case of Bowman v. Pedrick, section 2 of chapter 309 of the Baws of 1883 had not been repealed, but was in full force, and the surrogate had power, acting as county judge, to entertain the proceedings and to make the order of December 28, 1907, placing the relator in the custody of his counsel during the pendency thereof, and this defendant, having acted in good faith under orders served upon him, which were regular on their face and which had been granted by a court having authority to issue them, must be protected; and the plaintiff has no just cause of action against him, for there was no escape of the prisoner committed to his care under the body execution.

If I am correct in these conclusions, it follows that the plaintiff’s complaint must be dismissed; and it is dismissed, with costs.

Findings may be submitted and judgment entered accordingly.

Complaint dismissed, with costs.

The doctrine of this case might not be applicable to the Consolidated Laws in consequence of the provision of section 96 of the General Construction Law.— Rep.