
    The People of the State of New York ex rel. George Maibach, Respondent, v. Thomas J. Dunn, as Sheriff of the County of New York, Defendant. Joseph Stern and Others, Judgment Creditors, Appellants.
    . Irregularity in continuing an action, under a fictitious name, with knowledge of a defendants true name — how taken advantage of.
    
    Where a commitment, regular on its face, has been issued in an action pursuant to an order of the court and has been served upon the defendant, who has been proceeded against under a fictitious name, and there was no evidence before the court, when making the order for the commitment, that the plaintiff ' knew the real name of the defendant, the latter cannot properly be discharged from arrest under-a writ, of habeas corpus.
    The question whether the plaintiff had knowledge of the defendant’s true name should not be determined on affidavits presented on the return to a writ of habeas corpus, but upon a motion made to set aside the proceedings and commitment because of irregularity in continuing the action under a fictitious name . -with knowledge of the defendant’s true name, in violation of the requirements of section 451 of the Code of Civil Procedure.
    Appeal by Joseph Stern and others, judgment creditors of the relator, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk' of the ■county of New York on the 31st day of December, 1898, discharging the relator from the custody of the sheriff of the county of New York.
    
      Harold Nathan, for the appellants.
    
      A. J. Barrett, for the respondent.
   Van Brunt, P. J. :

The habeas corpus under which the relator was discharged was -obtained upon the petition of Anthony J. Barrett, his attorney. It appears from the petition that an action was commenced in the Municipal Court of the city of New York by Joseph Stern and others against Peter Maibach and John Maibach, the names Peter and John being alleged to be fictitious. It was further alleged in the said petition that the summons and complaint were served upon George Maibach, although he never- had any dealings with the plaintiff, being merely an employee of his father, Peter Maibach, who had business transactions with the plaintiffs; - that such proceedings were had that a judgment was entered against Peter and John Maibach, and that subsequently an order in supplementary proceedings was served upon the relator, and he not appearing, an order to punish him for contempt was duly- made by the City Court and a ■commitment issued. The relator was arrested and imprisoned by the sheriff of the county of Few York by virtue of this commitment, and at the time of the application for the writ the relator was in the custody of the sheriff under said commitment. The warrant ■of commitment recites the order of the City Court in proceedings .supplementary to execution wherein Joseph Stern and others were plaintiffs and judgment creditors, and Peter Maibach, the name Peter being fictitious, his real first name being unknown to plaintiff, was defendant and judgment debtor. It further recites that it satisfactorily appeared to the court that the said Peter Maibach, the name Peter being fictitious, the judgment debtor therein, was guilty ■of contempt in failing to appear for examination, and that the judgment debtor willfully and persistently disobeyed the order of the ■court and disregarded the same; and it orders and adjudges that said Peter Maibach, the name Peter being fictitious, the judgment -debtor therein, was guilty of contempt, and directs a commitment to issue to the sheriff to apprehend the judgment debtor, Peter Maibach, the name Peter being fictitious, and to commit him to the ■common jail of the county of Few York. Subsequent to the return of the writ, notice of the proceedings was given, pursuant to section 2038 of the Code of Civil Procedure, to the judgment creditors, who were permitted to file a so-called return denying each and every ¡allegation in the petition. The relator filed a traverse to the return, ■denying each and every allegation in said return contained. Fo ■evidence was taken upon the issue raised or supposed to be raised by the traverse to the return, and after hearing counsel, the court ■ordered the relator to be discharged from custody.

It would seem that the order was 'made upon the assumption that it appeared from affidavits that there was evidence tending to show that the plaintiffs had, subsequent to the commencement of the action, become aware of the real name of the defendant Maibach and that it was irregular to continue • the proceedings under the fictitious name.

It is undoubtedly true that upon the return of the writ the court can inquire whether the court issuing the commitment ha(íJurisdiction to make the order, give the judgment or issue the process, and whether the contempt is specifically and plainly charged m the commitment. It appears.that .the-, court had jurisdiction and that the relator was duly served witfi every process which was issued against him, and that the contempt is specifically and plainly charged in the commitment: The commitment being regular upon its face, and having been issued pursuant to an order of the court and served upon the proper person, it is difficult to see how any question of irregularity that was not jurisdictional in the issuing of the order for commitment or in. the commitmént itself, can be availed of by habeas corpus. By section 451, the plaintiff being ignorant of the name of the relator, had a right to pursue him by a fictitious name, and there was no evidence before the court at the time of making • the order in reference to the commitment that the plaintiff had ha,d any reason to know the true name of the defendant in the action. The order and commitment, therefore, were regular upon their face. If the order was inadvertently made and was irregular because the plaintiff knew the real name of the relator, the remedy of the relator was to move to set aside the order directing the. issuing of the commitment upon proof to the court that the' plaintiff knew the real name of the defendant and did not comply with the requirements of the pode of Civil Procedure directing all subsequent proceedings after the discovery of the real name to be taken under such real name. (Code Civ. Proc. § 451.)

We think, therefore, that the court erred in discharging the relator; that this question could not be tried upon affidavits presented upon the return of the writ of habeas corpus ; that all that could be inquired into upon such proceedings was the regularity of the commitment; and that for defects aliunde the record prior to the issuing of the commitment, the proper remedy was to move to set aside the proceedings and commitment because of such irregularity.

The order should be reversed, with costs and disbursements of this appeal, and the relator remanded to the custody of the sheriff.

Barrett, Rumsey, Patterson and.O’Brien, JJ., concurred.

Order reversed, with costs and disbursements, and relator remanded to the' custody of the sheriff:  