Schmidt v. Heitner

13 Jones & S. 334

Opinion

By the Court.—Freedman, J.

I do not see how the order appealed from can be sustained. Section 572 of the Code of Civil Procedure applies only to defendants in actual custody. A defendant released on bail is not in actual custody, within the true intent and meaning of the term, as used in the section referred to.

Section 288 of the former Code contained a similar provision, and, in Bostwick v. Goetzel (57 N. Y. 582, affirming 34 N. Y. Super. Ct. 23), was held inapplicable to the case of a defendant at large on bail. Coman v. Storm (2 How. Pr. 84) is not in point. In that case the defendant, though enjoying the liberties of the jail, was really imprisoned, upon an execution against his person, within the limits of the jail.

The order should be reversed, with costs, and the motion denied, with ten dollars costs.

Sedgwick, J., concurred.