Milanese v. Surety

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

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.