
    People of the State of New York ex rel., Marvin R. Clark, App’lt, v. Hugh J. Grant, Sheriff, etc., Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed December 21, 1888.)
    
    1. Contempt—Imprisonment for non-payment of alimony—What constitutes WITHIN MEANING OF CODE OlY. PRO., § 111.
    Tile imprisonment meant in Code Civ. Pro., § 111 (which limits the time that a person shall be imprisoned under an execution, etc., to enforce the recovery of a sum of money), is an actual imprisonment within the walls of a jail, and not the technical restraint under which a person may be supposed to be, who is committed to the custody of his counsel and permitted to go at large.
    2 Same—Practice—Return to writ of habeas corpus—Effect of demurrer TO RETURN.
    Where the person interested in continuing the imprisonment of the person brought before the court on a writ of habeas corpus makes a return veri led by affidavit stating facts, a demurrer to the return by the prisoner is an admission of the facts stated in the affidavit.
    Appeal from an order of the supreme court, general term, first department, affirming an order of the special term, refusing to release the relator upon a habeas corpus. For further facts see general term opinion, 15 N. Y. State Rep., 121.
    
      Edward P. Wilder, for app’lt; Waheman & Patting, for resp’t.
    
      
       Affirming 15 N. Y. State Rep., 121.
    
   Earl, J.

Section 157 of the Code of Civil Procedure provides that “ a prisoner committed to jail upon process for contempt, or committed for misconduct in a case prescribed by law, must be actually confined and detained within the jail until he is discharged by due course of law or is removed to another jail or place of confinement in a case prescribed bylaw;” and section 8 provides that “no prisoner shall be imprisoned within the prison walls of any jail for a longer period than three months, under an execution or any other mandate against the person to enforce the recovery of a sum of money less than $500 in amount, or under a commitment upon a fine for contempt of court in the non-payment of alimony or counsel fees in a divorce case, where the amount so to be paid is less than the sum of $500; and where the amount in either of said cases is $500 or over, such imprisonment shall not continue a longer period than six months.”

The amount of alimony and counsel fees which the relator was ordered to pay was upwards of $500. and therefore this was a case where he could be confined in a jail, under the warrants or mandates issued against him, for a period of six months, unless sooner discharged in some way authorized by law. The claim of the relator is that at the time he obtained the writ of habeas corpus for his release he had been imprisoned for more than six months, within the meaning of section 111. But upon the return of the writ it appeared that he had actually been confined within the walls of a jail for a less period than one month. It is provided in section 2037 of the Code that, pending the proceedings, and before a final order is made upon the return of the writ of habeas corpus, “the court or judge before which or whom the prisoner is brought may either commit him to the custody of the sheriff of the county wherein the proceedings are pending, or place him in such care' or custody as his age and other circumstances require.”

It appears that up to within a month of the time when the writ of habeas corpus in this proceeding was issued, the relator had by orders of the court been committed to the custody of his counsel, and that he had actually been at large and not confined within the walls of a jail or prison. He was not, therefore, entitled to his discharge as a person, who had been imprisoned within the walls of any jail for a period of six months. The imprisonment meant in the section is an actual imprisonment within the walls of a jail and not the technical restraint under which a person may be supposed to be who is committed to the custody of his counsel and permitted to go at large.

But it is claimed on the part of the relator that the facts as to his imprisonment did not properly appear before the judge. The return of the sheriff does not affirmatively show that the relator had been imprisoned within the walls of a jail for the period of six months, and if the hearing before the judge had been confined to the facts appearing in the return, the relator would not have been entitled to his discharge.

But section 2038 required that notice of the hearing upon the return to the writ should be given to' the person interested in continuing the imprisonment of the relator, and that was Lizzie H. Clark, the plaintiff in the divorce suit. She was notified and appeared before the judge and made what is called a return to the writ, verified by her affidavit, which states the facts showing that the relator had not actually been imprisoned within the walls of a jail. There was no, objection made to the consideration of that verified return by the judge and tlie record shows that the relator demurred to it, thus admitting the facts stated therein to be true. If objection had been made to that return then a further return by the sheriff might have been made showing the facts, or the judge under section 2031 could have taken oral evidence and thus ascertained the truth. We think, therefore, that the relator must be held to have admitted the facts stated in the affidavit of Mrs. Clark and that upon those facts he was not entitled to be discharged. The order should, therefore, be affirmed, with costs.

All concur.  