People ex rel. Smith v. Biggart

Appellate Division of the Supreme Court of New York

People ex rel. Smith v. Biggart

25 A.D. 20, 48 N.Y.S. 1030

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 15, 1898

StatusPublished

Cited by4 cases

This text of 25 A.D. 20 (People ex rel. Smith v. Biggart) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People ex rel. Smith v. Biggart, 25 A.D. 20, 48 N.Y.S. 1030 (N.Y. Ct. App. 1898).

Pincite

Opinion

Merwin, J.:

In the return of the appellant to the writ it was specifically stated that the relator had given an undertaking entitling him to the jail limits and that he was then on such limits. This was not denied by the relator in his traverse to the return, and we must assume it to be true. The same thing may be inferred from the petition itself of the relator. The order of discharge recited that the relator appeared before the judge in person and by attorney.

The appellant claims that, as the relator was on the jail limits, there was no such restraint as authorized a resort to the writ of habeas corpus. It was so held in Matter of Lampert (21 Hun, 154), decided by the General Term in the- first department. The same doctrine is laid down in Hurd on Habeas Corpus (2d ed. 201), citing Dodge's Case (6 Martin [La.], 569). We are not referred to any authority to the contrary. Following, as I think we should, the Lamport case, the order should be reversed and the proceeding dismissed. If the body execution was not proper,, the defendant [22]*22therein has a perfect remedy by motion in the action where all parties can be heard.

The order should be reversed, with ten dollars costs and disbursements, and the proceeding dismissed.

All concurred ; Putnam, J., concurred in result.-

Order reversed, with teii dollars costs and disbursements, and proceeding dismissed. . ■

Free access — add to your briefcase to read the full text and ask questions with AI

Merwin, J.:

In the return of the appellant to the writ it was specifically stated that the relator had given an undertaking entitling him to the jail limits and that he was then on such limits. This was not denied by the relator in his traverse to the return, and we must assume it to be true. The same thing may be inferred from the petition itself of the relator. The order of discharge recited that the relator appeared before the judge in person and by attorney.

The appellant claims that, as the relator was on the jail limits, there was no such restraint as authorized a resort to the writ of habeas corpus. It was so held in Matter of Lampert (21 Hun, 154), decided by the General Term in the- first department. The same doctrine is laid down in Hurd on Habeas Corpus (2d ed. 201), citing Dodge's Case (6 Martin [La.], 569). We are not referred to any authority to the contrary. Following, as I think we should, the Lamport case, the order should be reversed and the proceeding dismissed. If the body execution was not proper,, the defendant [22]*22therein has a perfect remedy by motion in the action where all parties can be heard.

The order should be reversed, with ten dollars costs and disbursements, and the proceeding dismissed.

All concurred ; Putnam, J., concurred in result.-

Order reversed, with teii dollars costs and disbursements, and proceeding dismissed. . ■

Cite This Page — Counsel Stack

Bluebook (online)

25 A.D. 20, 48 N.Y.S. 1030, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-smith-v-biggart-nyappdiv-1898.

Opinion

Related

Cite This Page — Counsel Stack