
    Ludwig Pustet and Herman Tapke, Appellants, v. Francis Twardowski, Respondent.
    (Supreme Court, Appellate Term, First Department,
    November, 1915.)
    Arrest — order of, in civil action — when motion for discharge denied — — Code Civ. Pro., § 572.
    The only grounds for the discharge of a defendant from arrest in a civil action are stated in section 572 of the Code of Civil Procedure and the fact that defendant’s family had suffered by his imprisonment and that it can serve no useful purpose does not justify an order vacating the order of arrest.
    In a civil action for embezzlement plaintiff obtained an order of arrest against defendant who wrote a letter, intended to meet and defeat the complaint, to the judge granting the order. Plaintiff’s attorney obtained an order that the letter be designated as an “ answer ” and filed, and' served defendant with notice of motion for judgment on the pleadings, together with a letter suggesting that he appear in court on the hearing of the motion so that he might leam that his “ answer ” was defective and obtain the right to file a new one. Held, that plaintiff took the proper course and that an order vacating the order of arrest and discharging defendant from custody on the ground that his imprisonment from which his family had suffered could serve no useful purpose should be reversed and a motion for his discharge denied.
    Appear from an order of the Special Term of the City Court of the city of New York, vacating an order of arrest and discharging the defendant from the Custody of the sheriff of New York county without bail.
    William G-. Phlippeau, for appellant.
    Maurice B. and Daniel W. Blumenthal, for respondent.
   Lehman, J.

On July 2, 1915, the plaintiffs obtained an order of arrest against the defendant. On September 23, 1914, an order was made discharging the defendant from arrest. In ordering the discharge the learned trial justice rendered an opinion in which he stated, “ There is no question that the plaintiffs herein on the 2d day of July, 1915, were entitled and justified in obtaining the order of arrest. There is likewise no- doubt that the discharge of this defendant is based upon a highly technical ground and is intended in nowise to reflect upon the conduct of the plaintiffs and their attorney. The court, however, is free to confess that this power is exercised with much personal satisfaction.”

The grounds of the court’s personal satisfaction are, that the innocent family of the defendant has suffered by his imprisonment and that his imprisonment can serve no useful purpose. Obviously, if the plaintiffs, as is conceded, were entitled to their order of arrest, no hardship incidental to the execution of the order, and no opinion of the court as to the wisdom or lack of wisdom of the legislature in providing for such orders, can he regarded as any ground for discharging the defendant. The legislature has provided for arrest in civil actions in certain cases, and by section 572 of the Code has provided the grounds upon which the court must, in a proper case, order the defendant’s discharge, and, unless one of these grounds exists in this case, the court has absolutely no power to discharge the defendant. It appears in this case that the complaint and the order of arrest were served on the defendant on July third. The complaint charges the embezzlement and fraudulent conversion of funds received by an agent in a fiduciary capacity. Thereafter the defendant addressed a letter to the justice who granted the order. This letter begins with the words, “ Being poor and not able to employ a lawyer, also not being able to appear in person in court I am compelled to reply to the complaint of L. Pustet & Co., 52 Barclay Str. New York City, by mail.” Then follows a long statement of defendant’s version of the transactions covered by the complaint.

In some manner the plaintiffs’ attorney received this letter by mail and on July 13, 1915, he obtained an order ‘ ‘ that the within letter referred to in said affidavit and designated as an answer herein be filed in the office of the clerk of this court.”

On July twentieth the plaintiffs’ attorney served the defendant with a formal notice of motion returnable on the twenty-sixth for judgment on the pleadings. He supplemented this notice with a letter to defendant on July twenty-fourth, in which he wrote: “As you have no lawyer to advise you, I venture to suggest that you make arrangement to appear, in court at the appointed time and place where an opportunity will be afforded to you by the judge to be heard in opposition to the plaintiffs’ application.”

On July twenty-sixth this motion was granted on default. On August third a writ of inquiry was obtained directed to the sheriff’s jury. On August ninth, the first day thereafter on which the sheriff’s jury met, the plaintiffs’ main witness was out of the jurisdiction; on August sixteenth the inquisition on the writ was taken and returned and judgment was entered on the same day. Prom this chronology I think it plainly appears that the plaintiffs have not in any way delayed in the enforcement of their rights or in the entry of judgment if they had a right to consider the letter of the defendant as an “ answer.” If this letter was no answer, then the defendant was in default on July fourteenth and the plaintiffs could have entered a judgment upon this default more than ten days before August sixteenth. In that event, and, in that event only, would the defendant be entitled to his discharge under section 572 of the Code.

The learned trial justice held that this letter constituted no answer because it was unverified. It is unnecessary now to consider whether, if a verification were necessary and the plaintiffs chose to waive this requirement, they would in any event have lost any rights under the order of arrest; for in this case no verification could be required. The complaint here clearly charged a crime and the defendant had, therefore, a right to rely on his constitutional privilege and refuse to verify his answer. See Kellogg v. Match Supply Co., 165 App. Div. 885; Thompson v. McLaughlin, 138 id. 711.

The plaintiff could, therefore, not refuse to accept the answer on this ground. The respondent, however, urges that even aside from this defect the letter was not an answer and was not intended as. an answer. Technically it was certainly not a valid answer. This is conclusively shown by the order for judgment on the pleadings. It shows, however, on its face that it was a “ reply to the complaint ” addressed to the court and intended by a defendant ignorant of the law to meet and defeat the complaint.

Under these circumstances the plaintiffs were certainly not bound to disregard it. They took exactly the proper course and treated it as an answer and gave the defendant an opportunity to appear in court so that he might learn that his answer was defective and obtain the right to file a new answer.' The defendant was therefore not actually in default on July fourteenth and the plaintiffs could enter no judgment upon default.

Order is therefore reversed, with ten dollars costs ■ and disbursements, and motion to discharge defendant is denied.

Bijur and Finch, JJ., concur.

Order reversed.  