#### EADS v. WYNNE.

(Supreme Court, General Term, First Department.

July 13, 1894.)

1. Arrest in Civil Cases—Escape—Surrender on Criminal Warrant.

Where a judgment debtor has been arrested on execution, plaintiff’s attorney has no power to allow his discharge without payment of the judgment; and where the attorney directs the officer who has the debtor in custody to surrender him to another officer, who holds a criminal warrant, such surrender is an escape, and he may afterwards be arrested on a second execution.

2. Execution against the Person—Clerical Errors.

Where an alias execution against the person fails to specify the county to which the execution against the debtor’s property had issued, but the county was stated in the first execution against the person, the error is a clerical one, and may be cured by amendment.

Appeal from special term, New York county.

Action by Harriet Eads against Henry G-. Wynne. From an order denying a motion to vacate an order of arrest, defendant appeals.

Modified.

Argued before VAN BRUNT, P. J., and FOLLETT and BARRETT, JJ.

C. H. Smith, for appellant.

William E. Stillings, for respondent.

BARRETT, J.

On the 2d day of October, 1893, Wynne was arrested under an execution against his person, issued in this action upon the 19th of the preceding month. He was so arrested in front of the Jefferson Market police court, by one Upham, *984an assistant deputy sheriff, acting under special authority from Sheriff Gorman. Immediately after the arrest, and before Upham. had time to remove his prisoner, the plaintiff’s attorney in the execution, one Dawson, came out of the Jefferson Market police court with a police officer, and directed Upham to allow this officer to-take Wynne on a criminal warrant. Upham did so, and Wynne was committed upon the criminal charge, in default of bail. He remained in the Jefferson Market jail until the 1st of the following January, when he was removed to the Tombs, where he remained until the 2d of April of this year. Upon the latter date, he procured bail upon the criminal charge, and was discharged from custody thereon. Thereupon, a second execution against his-person was issued,—this time to the present sheriff, Sexton,—and he was lodged thereunder in Ludlow Street jail. He moved at special term to vacate the second execution and his second arrest; also, f-or his discharge, under section 111 of the Code of Civil Procedure, upon the ground that six months had elapsed since his original arrest. The motion was denied, and Wynne appealed.

We have no doubt, upon the facts presented by the affidavits, that there was an actual arrest under the first execution. Wynne was in Upham’s custody thereunder when Dawson made his appearance with the police officer. It was an escape for Upham tx> permit Wynne to be taken from his custody upon the warrant of a police justice to answer an alleged crime. Brown v. Tracy, 9 How. Pr. 93; Crock. Sher. (3d Ed.) § 602; Barb. Grim. Law (2d Ed.) 536. The sheriff can avail himself of nothing as matter of defense to an escape but an act of God or the common enemy. Fairchild v. Case, 24 Wend. 381. It is well settled that the plaintiff’s attorney, as such, has no power to allow a discharge of the defendant without the actual payment of the money. Kellogg v. Gilbert, 10 Johns. 220; Simonton v. Barrell, 21 Wend. 362; Lovell v. Orser, 1 Bosw. 349; Jackson v. Bartlett, 8 Johns. 281; Vidrard v. Fradneburg, 53 How. Pr. 340. The attorney could not destroy the plaintiff’s rights by such a direction as was here given. She never consented to the surrender of Wynne to the police officer. There is no evidence that she was present upon the occasion. The complaint in the criminal proceeding seems to have been for stealing her property, but she was not the complainant. The complainant was Dawson. It was he who made the oath upon which the warrant was issued; and the proceeding wast entitled, as appears from the indorsement upon the warrant, “The People,”' etc., “on the Complaint of Andrew H. H. Dawson, vs. Henry' G.. Wynne.” As the plaintiff never consented to the surrender of Wynne, and as Dawson had no authority to so consent, it follows-that such surrender was an escape for which the plaintiff was not responsible, either in fact or in law. It- follows, too, that, as-she did not consent to the surrender, she may issue a new process, and retake the defendant. Code Civ. Proc. § 1492; Wesson v, Chamberlain, 3 N. Y. 331. . As was said in this latter case:

> “As regards the sheriff, the escape was voluntary, and he was responsible-for it; but the debt was not thereby discharged as against the judgment-*985debtors, and the plaintiffs had a right to issue a new execution, and to retake the defendants;” citing Watson v. Sutton, 1 Salk. 272.

The defendant was not entitled to be discharged under section 111 of the Code, for the reason that, after the surrender, he was not in actual custody under the first execution. Consequently, he was not in actual custody for the statutory six months. This period certainly did not run after the escape. Nor is this conclusion affected by the fact that, during all the statutory period, Wynne was in a criminal jail. These jails were not in the custody of the sheriff. In the city of New York the sheriff has “custody of the jail used for the confinement of persons committed on civil process only and of the prisoners in the same.” Consolidation Act,. § 1715. At all events, Wynne was not in the criminal jail under the civil process.

The defendant was not prejudiced by the error in the return made upon the first execution. The substantial matter is that he was not entitled to a discharge thereunder, pursuant to section 111 of the Code. The plaintiff was not responsible for the form of return which was made, nor was she bound to await such return before issuing her second execution. The latter process was properly issued at any time after the unauthorized surrender under the first execution. We think, however, that the point made against the second execution—that it did not specify the county to which execution against the property had been issued—was well taken. The name of the county was left in blank; but this was undoubtedly a clerical error, which can be cured by amendment. The name of the county was specified in the first execution, and the recital in the second execution covers “the county where the said judgment debtor resides.” The omission, therefore, was a mere irregularity,, which can be supplied by amendment. Walker v. Isaacs, 36 Hun, 233; People v. Seaton, 25 Hun, 305. The order appealed from should therefore be affirmed, except with regard to the matter last referred to. As to that, we cannot direct the amendment, as the plaintiff, although the irregularity was specified in the order to show cause, did not file an affidavit below. The order should therefore be modified by giving the plaintiff leave to move for an amendment of the execution by inserting therein the name of the proper county, if, in fact, an execution has been issued to that county and returned unsatisfied, and thereupon denying the motion to vacate such second execution, without costs; and there should be no costs of this appeal.

VAN BEUNT, P. J., concurs. FOLLETT, J., concurs in result.