Milanese v. Surety

New York Supreme Court

Milanese v. Surety

151 Misc. 44, 270 N.Y.S. 530, 1933 N.Y. Misc. LEXIS 1801

DecidedFebruary 10, 1933

StatusPublished

This text of 151 Misc. 44 (Milanese v. Surety) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Milanese v. Surety, 151 Misc. 44, 270 N.Y.S. 530, 1933 N.Y. Misc. LEXIS 1801 (N.Y. Super. Ct. 1933).

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Opinion

Shientag, J.

The defendant voluntarily returned to the jail limits before the action was commenced against the sheriff or surety by service upon them. This constituted a defense to the action which inured to the benefit of the surety. (Correction Law, §§ 528, 550; Carruth v. Church, 6 Barb. 504; Visscher v. Gansevoort, 18 Johns. 496; Van Hoesen v. Holley, 9 Wend. 209; Andrews v. Hart, N. Y. L. J. June 12,1918, Donnelly, J.; Strauss v. National Surety Co., Id. Dec. 4, 1931, Wasservogel, J.) In any event the prisoner’s voluntary return to the jail limits on February 10, 1932, was prevented by plaintiff, thus depriving the surety company of a defense conferred by the statute. (Richtmeyer v. Remson, 38 N. Y. 206; Drake v. Chester, 2 Conn. 473.) Plaintiff may not take advantage of his own wrongful act. Verdict is accordingly directed in favor of the defendant. Ten days’ stay. Thirty days to make a case. Settle order.

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Shientag, J.

The defendant voluntarily returned to the jail limits before the action was commenced against the sheriff or surety by service upon them. This constituted a defense to the action which inured to the benefit of the surety. (Correction Law, §§ 528, 550; Carruth v. Church, 6 Barb. 504; Visscher v. Gansevoort, 18 Johns. 496; Van Hoesen v. Holley, 9 Wend. 209; Andrews v. Hart, N. Y. L. J. June 12,1918, Donnelly, J.; Strauss v. National Surety Co., Id. Dec. 4, 1931, Wasservogel, J.) In any event the prisoner’s voluntary return to the jail limits on February 10, 1932, was prevented by plaintiff, thus depriving the surety company of a defense conferred by the statute. (Richtmeyer v. Remson, 38 N. Y. 206; Drake v. Chester, 2 Conn. 473.) Plaintiff may not take advantage of his own wrongful act. Verdict is accordingly directed in favor of the defendant. Ten days’ stay. Thirty days to make a case. Settle order.

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Bluebook (online)

151 Misc. 44, 270 N.Y.S. 530, 1933 N.Y. Misc. LEXIS 1801, Counsel Stack Legal Research, https://law.counselstack.com/opinion/milanese-v-surety-nysupct-1933.

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