People ex rel. Smith v. Biggart

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

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 therein 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. . ■