Rosenblum v. Higgins

240 A.D. 131, 269 N.Y.S. 306, 1934 N.Y. App. Div. LEXIS 10598

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 2, 1934
• Status: Published

Opinions

Glennon, J.

This is an appeal from an order denying a motion for summary judgment.

It is necessary to review the facts out of which this litigation grew, in order to indicate our reasons for believing that a proper determination was made.

The appellant herein is the plaintiff in a separation action in the Supreme Court, Kings county. During the pendency thereof, she was awarded the sum of fifteen dollars a week as temporary alimony. Her husband, the defendant in that action, fell into arrears. Thereafter an order was entered adjudging him in contempt for his failure to make payments in full and he was fined the sum of $575. Later a warrant was issued to the sheriff of New York county.

On September 10, 1932, the sheriff took Rosenblum into his custody and held him a prisoner in the jail of the county of New York. About February 23, 1933, while Rosenblum was still in custody, the separation action came on for trial before a justice sitting at Special Terna, Kings county. The defendant Rosenblum withdrew bis answer and counterclaim and the plaintiff took an inquest in open court. The court orally directed that a judgment of separation be entered in favor of the plaintiff. Upon the consent of the respective attorneys, the court entered an order of reference to an official referee to hear and report on the following questions:

“ 1. The amount of alimony that the defendant under the present circumstances is capable of paying to the plaintiff herein.

“ 2. Whether the imprisonment of defendant should be prolonged.

3. Whether defendant’s failure to pay alimony was wilful or due to his poverty.”

Thereafter and pursuant to the order, hearings were had before Hon. Russell Benedict, an official referee, on March 1 and 2, 1933. Prior thereto and on February 28, 1933, this respondent, the sheriff, was served with an order made by the justice who presided at the trial directing him to produce the prisoner before the official referee on March 1, 1933. At the conclusion of the hearings, the official referee found that Rosenblum, by reason of his poverty, would not be capable of paying alimony to the plaintiff until June, 1933. He thereupon ordered the deputy sheriff in charge of the prisoner to release him. At the same time he wrote on the order of reference the following:

“ Prisoner discharged.

“ Dated March 2, 1933.

" RUSSELL BENEDICT, Official Referee.”

The deputy sheriff had two alternatives. One was to comply with the order of the official referee, and the other was to disobey the order and risk punishment for a contempt of court. Naturally he complied with the directions of the official referee. At that time the prisoner had been in the custody of the sheriff for five months and twenty-two days, just eight days less than the six months’ period, at the termination of which he would have been entitled to his release and discharge.

This action was commenced on March 9, 1933. If plaintiff is to succeed herein, the net result will be that the sheriff will be compelled to pay out of his own pocket the total amount which the prisoner owed to the plaintiff at the time of his commitment.

On May 11, 1933, Rosenblum made an application for an order confirming the referee’s report and discharging him from imprisonment in the county jail nunc pro tunc, as of March 2, 1933. That motion was opposed by the plaintiff herein, but the same justice who had directed the original order of reference entered an order confirming the report of the official referee in all respects and released Barnet Rosenblum from imprisonment nunc pro tunc, as of March 2, 1933. The plaintiff served a notice of appeal from that order, but has not prosecuted it.

This action was predicated on section 514 of the Correction Law which reads:

“ Confinement of civil prisoner. A civil prisoner, committed to jail upon process for contempt, or committed for misconduct in a case prescribed by law, must be actually confined and detained within the jail, until he is discharged by due course of law, or is removed to another jail or place of confinement, in a case prescribed by law. A sheriff or keeper of a jail, who suffers such a prisoner to go or be at large out of his jail; except by virtue of a writ of habeas corpus, or by the special direction of the court committing him, or in a case specially prescribed by law; is hable to the party aggrieved, for his damages sustained thereby, and is guilty of a misdemeanor. If the commitment was for the nonpayment of a sum of money, the amount thereof, with interest, is the measure of damages.”

It is quite apparent that the Legislature intended to punish a sheriff or keeper of a jail “ who suffers such a prisoner to go or be at large out of his jail.” According to the strict wording of the section, the official who is derelict in his duties would be guilty of a misdemeanor and, in addition thereto, hable to pay damages, which in a case of this type would be admeasured in the sum of money due at the time of the release.

It may well be that the official referee exceeded his power in directing the deputy sheriff to release the prisoner, since he was directed to hear and report and not to hear and determine. Still, if-the deputy failed to comply with his directions, the official referee had the power to cite him for a contempt of court. Notwithstanding some authorities seemingly to the contrary, it is difficult to understand that the legislative intent was to punish a sheriff or a jail keeper in the manner described in the act, in a case of the type now under consideration. However, we do not rest our decision on that point. The order entered on June 5, 1933, providing for the release of the prisoner, took effect as of March 2, 1933. That order is still outstanding. “ Both parties [to that case] were before the court. So far as their rights as to one another are concerned, they are concluded by the order.” (Perkins v. Perkins, 225 Mass. 392, p. 398.)

Plaintiff’s cause of action against the sheriff is based solely, upon the so-called wrongful discharge of her husband as of March 2, 1933. If wrong there was in the original discharge, it was cured by the court in the proper exercise of its discretion. Rosenblum, prisoner, was discharged by “ due course of law,” within the meaning of section 514 of the Correction Law. Any cause of action which plaintiff believed had accrued by virtue of the discharge, no longer existed. If the court of last resort had affirmed the order entered by the court at Special Term, there is no doubt in our minds that the cause of action pleaded here, which seemingly had accrued, would be barred. If the court at Special Term had had the time to take the testimony which was adduced before the official referee, undoubtedly it would have directed the release of the prisoner either on March second, or possibly prior to that date. In other words, there was a delay in the disposition of the case, within the meaning of Mitchell v. Overman (103 U. S. 62). Since the order has not been modified and is still outstanding, the plaintiff in this case has no cause of action against this respondent.

For the reasons assigned herein the order should be affirmed, with twenty dollars costs and disbursements.

Finch, P. J., and Merrell, J., concur; Townley and Untermyer, JJ., dissent and vote to reverse and grant the motion to the extent of directing summary judgment in favor of the plaintiff and against the defendant for the sum of $575, with interest from March 2, 1933, and severing the action as to the balance of the plaintiff’s claim.