Moore v. McMahon

27 N.Y. Sup. Ct. 44

• Court: New York Supreme Court
• Decided: January 15, 1880
• Status: Published

Opinion

Barrett, J.:

There is no inherent power in the court to release a defendant merely as a matter of grace or mercy. There was none at common law. It is said that where there is no statutory power the party can only be released by special act of the Legislature. (4 Wait’s Pr., 195, citing Van Wezel v. Van Wezel, 3 Paige, 38.) There would seem to be no authority to release a prisoner held under an execution against the person because of his inability to endure his imprisonment. The Code, section 302, refers specifically to con-tempts in proceedings supplementary to execution, or under the act to abolish imprisonment for debt. The only method provided by law for the release of a defendant charged in execution is that specified in the Revised Statutes. (2 R. S., 31.)

We may add that, even if there were power, no case whatever was made for its exercise. All that the physician says is that the prisoner has a malarial fever and that incarceration is detrimental to his health. Confinement usually is detrimental to health, and malarial fevers, whether suffered in or out of jail, are undoubtedly severe.

But that is not what is meant, even in section 302, by inability to endure the imprisonment. The statute contemplates something in the nature of a slow wasting, a steady diminution of the vital forces, tending, unless arrested by sunlight, open air, proper exercise and the enjoyment of freedom, to a complete destruction of the constitution, and, as a not remote consequence, death.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Davis, P. J., concurred. Present — Davis, P. J., and Barrett, J.

Order reversed, with ten dollars costs' and disbursements; motion denied, with ten dollars costs; order to be settled by Barrett, J.