
    John Flynn, as Sole Administrator of the Estate of Rose Ferrigan, Deceased, Respondent, v. The Union Surety and Guaranty Company, Appellant.
    
      Escape— liability under an undertaking given to admit a judgment debtor to the jail liberties — it is not affected by his insolvency, nor by his voluntary return after service .of process on him outside the limits.
    
    Where a judgment debtor, arrested under a body execution, is admitted to the jail liberties upon giving the usual undertaking, and subsequently escapes therefrom, the surety upon the undertaking is liable to the judgment creditor for the amount of the debt for which the judgment debtor was committed, notwithstanding the fact that the judgment debtor is insolvent.
    The fact that the judgment debtor voluntarily returned to the jail limits does not constitute a defense to an action on the undertaking, where it appears that the action was commenced by the service of the' summons upon the judgment debtor when he was actually outside of the jail limits.
    Appeal by the defendant, The Union Surety and Guaranty-Com-pony, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county'of New York on the 4th day of February, 1901, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 1st day of February, 1901, denying the defendant’s motion for a new trial made upon the minutes,
    
      Eliot Norton, for the appellant.
    
      Carlisle Norwood, for the respondent.
   Hatch, J.:

There is practically no dispute as to the facts in this case. A judgment for the plaintiff had been obtained against one Bernard J. Tinney for conversion, and the defendant was arrested under an execution against the person. Tinney, as principal, and the defendant company herein as surety, gave a bond in the usual form for the jail limits. Up to the 1st of September, 1900, Tinney appears to have stayed within the limits, but on that day he went to Liberty, N. Y., outside the jail limits, and was seen there on the second and third. It appears that Tinney voluntarily returned and was within the limits on the fourth of September, and has been within them continuously ever since. This action was commenced on the third day of September, and the summons was served when Tinney was 100 miles outside the limits. At the close of the evidence the trial court directed a verdict in favor of the plaintiff for the amount of the judgment against Tinney, with interest and costs. The appeal is from this judgment and from an order denying a motion for a new trial upon the minutes of the court, and is based upon certain refusals of the court to dismiss the complaint upon motions made both at the beginning and close of the plaintiff’s case, and upon the refusal of the court to allow the case to go to the jury upon the request of defendant.

The questions embraced in the motion to dismiss made at the opening of the trial, and most of those presented by the one made at the close, particularly those relating to the form of the summons, and the time and manner of its service, have been determined by this court adversely to the defendant upon an appeal herein, and from an order made in a motion to set aside the service of the summons (54 App. Div. 637), and, therefore, they require no further consideration here. There was no opinion in that appeal, but the record discloses that the motion was based upon the same grounds.

The only point presented upon this appeal requiring our consideration is the question of the amount of the recovery, and this is hardly debatable, although counsel for appellant brings a cloud of witnesses in the way of authorities from many States in support of his contention that the rule of law applicable to the case is that which limits or fixes the recovery to a sum which shall be compensatory of the actual damage suffered, and that the question is, therefore, one of fact for the jury; and that as it is shown that the prisoner for whose escape the action was brought was insolvent, no damage was suffered. ■

Although counsel has exhausted the resources of digests and encyclopaedias of law in his citations of authorities,, he has failed, and clearly could but fail, to establish the applicability of the rule enunciated by such authorities to this case. The action is purely statutory, and both the liability and the amount of the recovery are fixed and determined by the statute:

Section 155 of the Code of Civil Procedure defines an escape as follows: “ The going at large beyond the liberties, by a prisoner, without the assent of the party at whose instance he is in custody, is an escape; * * * Such an escape- forfeits the undertaking for the liberties, if any.”

Section 158 fixes the liability of the sheriff for such escape, in a case where the prisoner is in custody by virtue of an execution against the person, as the amount of the debt, damages or sum of money, for which the prisoner was committed.”

These sections have, been construed by the courts,, and it has been decided that the liability of the sheriff for such an escape is the ' amount of the debt for which the prisoner was committed; (Dunford v. Weaver, 84 N. Y. 445 ; Bensel v. Lynch,. 44 id. 162 ; Metcalf v. Stryker, 31 id. 255.) These cases also determine that the fact of the insolvency of the debtor is no defense.

It is further provided by section 160 of the Code of Civil Pro. cedure that, in an action brought on an undertaking for the jail lib. erties, it is a defense that the prisoner voluntarily returned to the liberties of the jail, or was recaptured by or surrendered to the sheriff before the commencement of the action. The voluntary return of the prisoner in this case furnishes no defense, because the facts do not bring the case within this provision. The action was commenced while the prisoner was actually outside the liberties. It seems clear that, under the provisions of the Code and the authorities cited, the verdict was properly directed.

The judgment and order should, therefore, be affirmed, with costs.

Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.

Judgment and order affirmed, with costs.  