
    Arthur M. Cortis, Appellant, v. John L. Dailey, Sheriff of Richmond County, Respondent.
    
      Sheriff—his liability in the case of a voluntary and of a negligent escape of a prisoner, arrested upon an execution against the person, contrasted—when a question for the jury — duty of the sheriff as to the "limits” and the taking of an undertaking.
    
    The escape of a prisoner in custody under a body execution is either voluntary or negligent. In the former case the escape is not purged by his return, but in the case of a negligent escape, if he returns before suit is instituted against the sheriff, his return is, under the provisions of section 171 of the Code of Civil Procedure, a defense to the sheriff.
    Proof in an action brought in April, 1896, because of the escape of a prisoner committed to the defendant sheriff under a body execution, tending to show that the prisoner, without the knowledge or assent of the sheriff or of his deputy, in whose immediate"charge ■ the prisoner was, left the jail limits, to which he • returned only in March, 1896, and soon after died there ; that the sheriff, under an alleged misapprehension, wrote shortly after the death of the prisoner letters to the attorney for the plaintiff stating that the prisoner had been discharged by order of the county judge; that the sheriff also gave notice to his bondsmen, for the limits, that the matter was closed, and that he failed to deliver the undertaking to the plaintiff as required by section 150 of the Code of Civil Procedure, does not necessarily show that the escape was voluntary, and in such a case that question is one of fact to be submitted to the jury.
    
      Semble, that if a sheriff keeps a prisoner within the liberties of the jail, he cannot be charged with liability for an. escape whether he has or has not taken an undertaking for the limits.
    
      Appeal by the plaintiff, Arthur M. Cortis, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of' Richmond on the 31st day of March, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office On the 7th day of April, 1897, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Everett P. Wheeler [John S. Woodruff with him on the brief], for the appellant.
    
      Walter T. Elliott, for the respondent.
   Bradley, J.:

The plaintiff charges that the defendant became liable to him for the voluntary escape of one Charles O’Donnell, who was arrested upon an execution against his person, issued on a judgment recovered against him by the plaintiff. It appears that O’Donnell was arrested by the defendant upon such execution on or about December. 13,1895, and that afterwards, on or about the twentieth of that month, upon the delivery of the requisite-undertaking, he was admitted to the liberties. of the jail of Richmond county, which liberties were co-extensive with the county. He was on the Staten Island ferryboat which left New York for that island at twelve-twenty o’clock, on Sunday morning, March 15, 1896. When .the boat landed on the island he became unconscious, was carried from the boat, and died soon after in Richmond county. It does not appear when, he left there and went to New York. This action was commenced in April, 1896.' The absence of O’Donnell from the. liberties of the jail at any time, without the assent of the plaintiff, was an escape. (Code Civ. Proc. § 155.) And if the escape was voluntary, that is, with the assent of the defendant, the latter was not relieved from liability by the return of the prisoner. Otherwise, his return to the liberties of the jail, where he died before the suit was commenced, constituted a defense. (Id. § 171.) The escape of a prisoner in custody on a body execution is either voluntary or negligent. In the former case the escape is not' purged by his return. It is otherwise in case of a negligent escape if he returns before, suit is instituted against the sheriff. (Littlefield v. Brown, 1 Wend. 398; Lansing v. Fleet, 2 Johns. Cas. 3.) That was matter of defense for the defendant, who furnished evidence to the effect that he had not assented to the departure of the prisoner from the limits or liberties of the jail. It appeared, however, that in some correspondence between the plaintiffs attorney and the defendant, instituted by letter of inquiry to the latter, shortly after the death of O’Donnell, the .defendant, in his first letter, stated that the prisoner had been released from custody by order of the county judge, “ and we have had no control of the matter for a considerable length of time,” and in his later letter to him he said: There appears to be a misunderstanding between County Judge Stephens and myself, for I certainly understood him to say that the man should be released. From a conversation with him to-day, he informs me such was not the case; that he only advised me to return the execution. I still have the bond in my possession; but, acting under what I supposed was Judge Stephens’ advice, my impression is I informed'the bondsman to that effect.” The defendant’s testimony is that those letters were' dictated by him under a misapprehension, and that the arrest of O’Donnell was made by the under sheriff, who testified that he had not assented to any departure of the prisoner from the liberties of the jail. It is urged by the learned counsel for the plaintiff that from this evidence the conclusion was required that the defendant assented to the release of t-he-prisoner from custody. And he further contends that the defendant’s notice to the bondsman, to the effect that the matter was closed, was a release by him of the prisoner from that relation. Assent implies permission. The evidence upon the part of the defendant is that he neither personally nor through his under sheriff, or any of his deputies, assented that the prisoner should leave the liberties, and that he did not know that he was or had been absent from them until informed of it after his death; and the evidence of the under sheriff, who more directly had charge of the matter, was to the same effect. Information given by the defend, ant to the surety in the undertaking for the limits was not necessarily in its effect permissive to the prisoner to' leave, nor was the surety by that means constituted the representative of the defendant to communicate such information to the prisoner if he had been so disposed. It does not appear that he did have any communication with him upon the subject.

The most that can well be claimed on the part of the plaintiff is that the question whether the escape of the prisoner was voluntary was one of fact for the jury upon the evidence. . The question was submitted to them by the-charge of the court fairly, and as favorably to the plaintiff as was justified by the-evidence. It is urged, however, that by stating to the surety that the matter was settled, the defendant discharged him from the obligation created by the undertaking, and" that as a consequence released the prisoner from custody. The question whether the surety was discharged is not necessarily here for consideration upon the facts presented. He is not seeking to be.relieved. . If the defendant was liable as for a voluntary escape of the prisoner, he would- not be entitled to indemnity upon the undertaking of the surety. And if the escape was not voluntary, the defendant, as before observed, "is not liable to the plaintiff, because-the prisoner returned to the limits before suit. It would, therefore, seem that the undertaking has no essential significance in the present case. Prior to the Revised Statutes it was provided that a bond taken for jail limits was for the indemnity of the sheriff only (1 R. L. 429, § 6), but the right to assignment of the bondsman was given to the party at whose instance the prisoner was confined. (Id. § 7.) While, as the statute ■ then was, it was necessary for a person arrested on final process against- his person to furnish such security to entitle him to the liberties of. the jail, security was not essential to permit the sheriff to grant them to him. The reason for this was in the fact that the liberties or limits were, as they are now, considered a mere extension of the walls of the jail, and the sheriff might, without the use of bars and bolts, take the responsibility of keeping the prisoner in his custody within such limits. (Peters v. Henry, 6 Johns. 121; Jansen v. Hilton, 10 id. 549; Barry v. Mandell, Id. 563; Develin v. Cooper, 84 N. Y. 416; Wemple v. Glavin, 57 How. Pr. 109.) By the Revised Statutes it was provided that such security taken by the sheriff in admitting a person- to the liberties should be held as indemnity for both the sheriff, and the party at whose suit the prisoner was confined (2 R. S. 434, § 43), and such is -the provision of the present statute. (Code Civ. Proc. § 151.) The right of the judgment creditor to resort to the undertaking is practically the same as it was under the Revised Laws and the Revised Statutes, although no.formal" assignment is necessary:'--The statute, as amended in 1886, also provides that if the person at whose instance the prisoner is in custody discovers that the surety in the undertaking for the liberties is insufficient, he may take proceedings fol commitment of the prisoner to close confinement. (Id. § 152.) But it may be observed that to constitute an escape the prisoner must go beyond the jail liberties. (§ 155.) It would seem to follow that so long as the sheriff keeps a person imprisoned on final process within those liberties he cannot be chargeable with liability for an escape, whether he has or has not taken any undertaking for the limits; and that subject to such rights as the creditor may have to take proceedings for the close confinement of the prisoner for want of an undertaking, the rule is the same as that announced by the court in Peters v. Henry (supra),to the effect that the sheriff is permitted, without security, to admit such a person to the limits.

The failure (urged upon our attention) of the sheriff to deliver the undertaking to the plaintiff, as provided by the statute (Code Civ. Proc. § 150), was a mere omission of the defendant to do his duty in that respect, and can have no essential bearing upon the question of the alleged escape. It is not seen that the disposition made of the questions of fact by the verdict of the jury was against the weight of the evidence in the view they were permitted to take of it.

The judgment and order should be affirmed.

All concurred.

Judgment and order affirmed, with costs.  