The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-11-19
SUPREME cuuaT-cEnERAL TERM.
Another RniIrond Case.


Before Judges Insraham, J. +. Barnard and Mnllin.
Duke Merritt, Respondent, cs. The Hudson RiCer
Railroad Cornpdnp Appetlant.-On The morning OF
the 10th day Of January 1866, the plaintiff Merritt,
who is milkman, was in Hudson street, near
Duane, seated in his milk wagon, and proceeding
80 doing and when quite near the American Express
Company's building, railroad express car which
was coming down the street was switched" so
to run 1t through the archway into the express CON-
pany's building. The plaintiff attempted to drive
his wagon between the and the building, but
was caught by the Car and had his leg severely in
jured. His wagon and horse were also injured con-
siderably. On the trial the Jury awarded him YER
ants actually appealed from the Judgment
The case was argued on appeal to-day, and at the
close OF tnat argument the Court at once affirmed
the Judgment OF the court below.
An Important Appeal Case.
Before Judges Barnard, Ingraham and Cardozo.
TIE People er rel. Ramon s. Lato,re Us. James
O'Brien, S'ei1G.-Upon charges OF fraudulent pur-
chases on credit OF about $4,000 worth OF goods
from various New York merchants, and the fraudu-
lent shipment Of the bulk Of his property TO relatives
In Havana the reator was at the instance Of one OF
the creditors, arrested in February last under
"Stilwell'' warrant. In the same month the reator
was finally convicted OF such frauds and committed
TO jail, where ne has since remained Some time in
August last the debtor applied to Judge Russell,
under the provisions OF the Revised Statutes, en-
titled, of voluntary assignment by an insolvent for
u, the purpose OF generating his person from
certain proceedings he'd, granted an order OF
cxoneratlon, &c. Upon this order tie debtor APP
beas corpus; but Judge Barnard I'D that the order
Of Judge Russell not cfYectua to release him on
the ground tnat the Stlwe act OF 1881 repealed the
law Of 1918, under which Judge Russell had acted,
and renanded the prisoner On appeal from such
last named decision argument was made by counsel
early In the present general term and tie following
opinions affirming Judge Barnard's order have just
been pronounced:-
AFFIRMATogY ORDER
Judge CardOZO, hearing the cause, decided
foIlows:-The apparent for there Is not any really
difiicuty in this matter seems to arise from the
lators counsel having confined his attention TO the
ninth section Of the act OF April %, 1881 ED. Stat,
vol 4, p 1857 overlooking or ignoring the nth Sec
ton. The ninth section provides that the final
commitment Of the defendant shall be to the
ian Of the county II n WHEN tne nearing -
according to law" The eleventh section points out
the law according to which the defendant may be
discharged. That section provides that The defcnd
ant so committed ''shall remain In custody In the
same manner az other prisoners on criminal process
until final judgment shall have been rendered IN
his favor in the suit prosecuted by the creditors at
whose instance such defendant shall nave been com
United, or until he shall have assigned his property
and obtained his discharge, provided in the sub
sequent sections OF this actn When the act OF 1881
declares that the prisoner shall remain In CUSTODY
until discharged according to the sections OF that
statute 1t is preposerous TO argue that he could be
discharged under the provisions OF prior statute
The language or section eleven excludes all other
remedies and reduces the defendants application
for discharge to proceeding under ahd pursuant 10
the provisions OF That act. the statute OF 1918, re-
enacted by the Revised Statutes Odd Stat, vol 2, p.
l9 was therefore napplicabe to the realtors case,
and the decision OF the learned Justice below was
clearly right, and his order should be affirmed with
costs. Ordered accordingly.
JUDGE INGRAHAM's VIEWS.
II the act to abolish imprisonment, &C., Is to be
considered operative, concur in the above opinion,
Affirming the order appealed FROM. The reason Is
npparent-viz., tina. in the proceedings under the
twelfth section the assignment Is for the benefit "
the prosecuting creditors spear vs.. Wardell, N Y.
Rep D. 144), while under the act Of which the de-
PENDANT availed himself the assignment In for the
benefit Of all the creditors. order should be
AFFIRMED.
For relator Joseph j. Marin and Messrs. Beebe,
DOnahue and Cooke For Sheriff, Brown Hall and
VAnoerp0cl. For creditor. G. A. SelXas.