
    The People ex rel. John H. Post, App’lts, v. Hugh J. Grant, Sheriff of the county of New York, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 24, 1888.
    1. Supreme court—Jurisdiction of judges to m:abe an order.
    The supreme court of the state is one court, though having numerous justices and clerks, and any justice holding a court in any part of the state may make an order of the supreme court in any action no matter, in -what county the venue may b'e laid, unless such order is required to be made or is made upon notice as required by Code Civil Procedure, §§ 768 and 769, except in certain cases regulated by special statutes.
    2. Arrest—Order for commitment sufficient warrant—Code Civil Pro., § 2283
    Under provision of Code Civil Procedure, § 2283, a person can be arrested for contempt of court without the issuance of any commitment, a certified copy of the order directing the commitment being a sufficient warrant for his arrest. The issuance of the commitment in such a case is unnecessary, although the proceeding by commitment is entirely regular and is expressly authorized by section 2281.
    3. Same—Habeas, corpus—Arrest by wrong- sheriff.
    If a prisoner is rightfully under arrest, merely because he has been taken by the wrong person (in this case the sheriff of the wrong county) does not entitle him to his discharge upon habeas corpus.
    
    4. Same—Power of sheriff to make arrest—Code Civ. Pro., § 118.
    Under Code Civil Procedure, section 118, the sheriff of one county may arrest in another for the purpose of incarcerating in his own county.
    5. Same—Warrant of commitment—Form of.
    A warrant of commitment which does not specify the acts to be performed but refers to the order and judgment, does not comply with the requirements of Code Civil Procedure, section 2285. The commitment must specify the act to be done, where one is issued, and no reference can be had to any other paper to supply this defect. It is of no consequence how well the prisoner may know what he was bound to do. If a commitment recites the order so that it becomes part thereof, that will be sufficient.
    6. Same—Party must elect as to manner of procedure.
    Parties proceeding or enforcing penalties for contempt must do so either by arrest under an order, or under a warrant of commitment, but cannot do both. They must elect their course of procedure, and be governed by such election in all subsequent stages of the prosecution.
    Appeal from an order of the special term dismissing a writ of habeas corpus and remanding the relator to the custody of the sheriff.
    
      Noah Davis, for app’lts; W. W. MacFarland, for resp’t.
   Van Brunt, P. J.

The validity and sufficiency of the order, in pursuance of which the commitment in question issued having been determined by the court of appeals against the contention of the relator, no question as to the regularity and sufficiency of the order is now before the court, and the only points which remain undetermined are as to the sufficiency of the commitment and the power of the respondent to arrest and hold the relator thereunder.

The learned justice who made the order appealed from, in his opinion, has conclusively shown that the court which issued this commitment had full power and authority so to do.

The supreme court of the state is one court, though having numerous justices and clerks, and any justice holding a court in any part of the state may make an order of the supreme court in any action, no matter in what county the venue may be laid, unless such order is required to be, or is, made upon notice (Code Civ. Pro., §§ 768, 769), except in certain cases regulated, by special statutes.

Therefore, the commitment in question being ex parte, application could be issued by any justice of the supreme court while holding a term of said court in any part "of the state.

-Under the provisions of section 2283 of the Code, the defendant could have been arrested without the issuance of any commitment, a certified copy of the order directing the commitment being a sufficient warrant; the issuance of the commitment was, therefore, unnecessary in the case at bar, although the proceeding by commitment was entirely regular, and is expressly authorized by section 2281. .

The objection that the sheriff of New York had no power to imprison the relator in Richmond county, as commanded by the commitment, may be well taken, but this defect in no way invalidates the proceeding.

. The commitment ran to the sheriff of New York county or any other county, and although, perhaps, the most regular practice would have been to have issued the commitment to the sheriff of Richmond county, who it appears could have made the arrest in any county of the state, and have taken the prisoner to the county of Richmond for incarceration (People ex rel. Johnson v. Nevins, 1 Hill, 154; Code Civ. Pro., § 118), the 'fact that the arrest was actually made by the sheriff of New York county in no manner entitles the relator to his discharge.

If the relator is rightfully under arrest, merely because he has been taken by the wrong person, in no manner entitles him to his discharge upon a habeas corpus.

By section 2036 of the Code, it is expressly provided that where a prisoner is not entitled to his discharge he must be remanded to the custody from which he was taken, unless the person in whose custody he was, is not lawfully entitled thereto, in which case the order remanding him must commit him to the custody of the officer or person so entitled.

By this provision, if the relator should properly have been arrested by the sheriff of Richmond county, as we think he should have been, it was the duty of the court upon dismissing the writ of habeas corpus to have remanded the relator, not to the custody of the sheriff of New York, from whose custy he was taken, but to the custody of the sheriff of Richmond county, in whose custody he belonged.

That a sheriff of one county may arrest in another, for purpose of incarceration in his own county, has been expressly recognized by section 118 of the Code of Civil Procedure, which provides that, a sheriff. who has lawfully arrested a prisoner may convey his prisioner through one or more counties in the ordinary route of travel from the place where the prisoner was arrested, to the place where he is to be confined. The case already cited of The People v. Nevins, recognizes the same power.

We are of the opinion, therefore, that the relator was not entitled to his discharge simply because of his arrest by the sheriff- of New York, but that he should have been remanded to the sheriff of Richmond county, to be confined pursuant to the commitment.

The objection raised to the sufficiency of the commitment raises a more serious question.

The commitment in question, does not specify the acts to be done by the relator, but refers to another order and judgment therefor.

This does not seem to be a compliance with section 2285 of the Code.

This section provides that where the misconduct consists of an omission to perform an act or duty, the order and the warrant of commitment, if one be issued, must specify the act or duty to be performed and the sum to be paid.

In the case at bar the warrant of commitment does not specify the acts to be performed, but refers to the order and judgment.

This is not a compliance with the requirements of the Code; the commitment must specify the act to be done where one is issued, and no reference can be had to any other paper to supply this defect.

The reason of this provision is obvious; it is for the purpose of enabling the sheriff to determine when the prisoner is entitled to his liberty.

The answer made by the respondent to this objection Roes not seem to meet the difficulty.

It is of no consequence how well the relator knew what he was bound to do, neither would it have remedied the difficulty if the sheriff had returned that he held the- relator under a certified copy of the order as well as under the commitment. We suppose that the parties proceeding to-enforce penalties for contempt must either proceed by arrest under a commitment, but that they cannot do both. They must elect their course of procedure and be governed by such election in all subsequent stages of the proceeding.

If the commitment had recited the order so that it became part thereof, that would have been sufficient, but the order was in no manner made a part of the commitment by a simple reference thereto. The provisions of the Code in reference to this matter seem to be distinct and must be followed.

The commitment therefore being fatally defective, the relator was entitled to his discharge from arrest under this commitment.

Order reversed, with ten dollars costs and disbursements, and prisoner discharged from arrest under commitment issued July 21, 1887.

Bartlett and Macomber, JJ., concur.  