Levy v. Kaim

In this action, which is to recover chattels wrongfully concealed and disposed of by the defendants, an order of arrest was granted bailable in $1,500. The defendants, who are in actual custody, seek to obtain their liberty upon executing the ordinary limit bond. The sheriff opposes their application upon the ground that, under subdivision 2 of section 575 of the Code of Civil Procedure, the defendants are required to give an undertaking to pay any judgment that may be recovered in the action, and the sheriff’s counsel insists that the defendants are entitled to no other relief. This is an error. The provision cited applies only to cases where the defendants ask to be discharged upon bail. Section 149 of said Code provides that “ a person in the custody of a sheriff, by virtue of an order of arrest, or of an execution in a civil action, or in consequence of a surrender in exoneration of his bail, is entitled to be admitted to the liberties of the jail upon executing a bond to the sheriff, as therein pre*137scribed.” This section, which is new, extends the liberties of the jail to defendants in' custody under orders of arrest as well as under final process. The next section (150) provides the form of the bond, which must be “ conditioned that the person so in custody shall remain a prisoner, and shall not, at any time or in any manner, escape or go without the liberties of the jail until discharged by due course of law.” Sections 149 and 575 are not in conflict. The distinction between them is that, under the bail bond required by section 575, the defendants are discharged from the arrest (see sec. 573), while under the limit bond the defendants remain under arrest and are merely admitted to the liberties of the jail {see. 149), which in the city and county of Hew York embrace the whole of that city and county (see. 145). The sheriff will, therefore, be directed to discharge the defendants upon receiving the undertaking required by section 575, subdivision 2, or to admit them to the liberties of the jail upon the limit bond provided for in sections 149 and 150 (supra).

Ordered accordingly.