Schaffer v. Riseley , 6 N.Y. St. Rep. 417 ( 1887 )

Learned, P. J.:

The defendant, a sheriff, is sued for an escape. Iiis defense is, that the imprisoned debtor had been legally discharged. And the only question is, whether the discharge was such as justified the sheriff in permitting the debtor to go free.

The order of discharge, it is claimed by the plaintiff, does not show jurisdiction in the county judge, in failing to recite that the petition was “ in writing,” “ signed by the party,” with a “ schedule annexed.” (Code Civil Pro., § 2203.) But it appeared on the trial that the petition was in writing, signed by the party, and with a schedule annexed. This proof supplied the want of those allegations in the order of discharge. (Bullymore v. Cooper, 46 N. Y., 236.)

The next defect alleged by the plaintiff is, that the order does not recite the making of the affidavit required by section 2204. The proof on this point shows that the affidavit was made February twentieth, and the petition was presented March ninth. This section of the Code now expresses that the affidavit “ subscribed and taken by the petitioner on the day of the presentation of the petition must be annexed,” etc. In Richmond v. Praim (24 Hun, 578) we were of opinion that, under the Revised Statutes, this affidavit might be previously made. The Code lias settled that point otherwise.

Section 2205, which provides for service of a copy of the petition and schedule fourteen days before presenting, says nothing about a copy of the affidavit. The mistake in this case must have arisen from supposing that a copy of the affidavit must be served, for the service was made February twenty-first. The county judge, therefore, had no jurisdiction; and as there was no recital of such affidavit in the order of discharge, there is nothing to protect the sheriff. This view has been illustrated by supposing that order of discharge contained no recitals whatever. It would not then protect the sheriff unless he could prove, in fact, the jurisdiction. And it must be noticed that the affidavit referred to is a part of the very first step by which jurisdiction is acquired.

The doctrine of Bullymore v. Cooper, above cited, is that the order of discharge must show the facts giving the court jurisdiction of the person and the case. (So Bennett v. Burch, 1 Denio, 141.) If the order does not show these facts, they may bo shown aliunde. There is nothing in conflict with this in Goodwin v. Griffis (88 N. Y., 629.) In that case there was evidence aliunde, and the case did not rest on the order only. Furthermore, the court held that the imprisoned debtor had not been liable to an execution against the body, and, therefore, the sheriff was not answerable for the escape.

The defendant insists .that the order recites that it was made after hearing the attorney for the plaintiff. But that recital implies no consent on his part. He may have opposed. He was not acting for the debtor.

It is with reluctance that we come to the conclusion that the order of discharge is not a defense, and that the proof of the proceedings shows that they were fatally defective. Undoubtedly the sheriff acted in good faith, and it is hard that he should suffer; but, on the other hand, the plaintiff has rights. She has her judgment and has a right to collect it by all legal means. The sheriff was bound to see that he did not let the debtor go until an order of discharge was presented, which conformed to the law and showed the jurisdiction of the court.

The judgment should be reversed, new trial granted, costs to abide the event.