Cosgrove v. Bowe.

plaintiff meant by the allegation "go at large" seems to be defined by the next paragraph of the complaint, where he says, "and refused to detain him in his custody or to imprison him, as required by law and by the said order of arrest." The whole allegation read together would seem to lead to the conclusion that the party making the allegation in the complaint meant to claim that the sheriff was bound to retain the defendant Bergen in his physical custody and actually imprison him, or he would be liable as for an escape; and hence he alleged that the said Andrew Bergen was allowed to go at large because of the fact that the sheriff refused to keep him in his physical custody and actually to imprison him.

Now in the Code * the language used is exceedingly distinct it is "at large beyond the liberties of the jail;" which would seem to indicate that the use of the words "at large" would not by any means indicate that the prisoner had been allowed to go beyond the liberties of the jail.

It is urged by the counsel for the respondent that the allegation contains necessarily an implied averment of the fact that he went beyond the liberties; but I entirely fail to see the force of this suggestion, because, as has already been seen, the allegation contains a definition of what the pleader meant by the prisoner going at large, and which would be entirely true without any escape having been permitted. It would seem therefore that there was no sufficient allegation of an escape.

The third ground by which the appellant seeks to sustain the demurrer seems to be also well taken, and that is, that the complaint does not allege any indebtedness of Bergen to the plaintiff. That this allegation is necessary is expressly laid down in Greenleaf on

*Code of Civil Procedure, section 155. VOL. II.--5

Cosgrove v. Bowe.

Evidence, section 584, and Chitty on Pleading, volume 2, page 738. The sheriff has a right to take issue upon this question of indebtedness, and to avail himself of every defense which the prisoner would have had against such indebtedness.

It is an issuable fact, therefore, and must be distinctly alleged in order that issue may be taken thereon.

In the complaint under consideration the allegation is that on the 24th of June, 1881, in an action brought in the marine court of the city of New York, against one Andrew Bergen, for wrongfully converting property belonging to plaintiffs, an order was duly made by one of the justices of said court, and so on.

This allegation might be entirely true, and yet no indebtedness exist in favor of the plaintiff as against the said Bergen.

The fact that an action was commenced is not equivalent to an allegation of indebtedness and proof thereof. The plaintiff might prove every allegation contained in the complaint, and give no evidence whatever of the existence of any cause of action in the plaintiff against Bergen.

It would seem therefore that the complaint is defective in the respects above mentioned, and that the demurrer must be sustained, with leave to the plaintiff to amend his complaint within twenty days, upon payment of the costs of the court below and of this appeal.

BEACH, J., concurred.

Sherwood v. Travelers' Ins. Co.

SHERWOOD, RESPONDENT, v. THE TRAVELERS' INSURANCE CO., APPELLANT.

N. Y. COMMON PLEAS, SPECIAL TERM; MAY, 1882.

$ 3047.

District Court.-Clerk not to pay costs on appeal to respondent until judgment is affirmed.

Costs paid to a justice of a district court or his clerk on appeal, are paid as a requisite of appeal and not as a satisfaction of so much of the judgment appealed from. They do not belong to the respondent until the judgment is affirmed.

A justice or his clerk, to whom costs have been paid, on an appeal, is not justified in paying them to the respondent until the judgment is affirmed, but must refund them to the appellant, if the judgment is reversed.

Motion to require clerk of district court to refund to appellant costs paid on appeal.

Judgment was rendered in the district court of the city of New York for the tenth judicial district against the defendant. It appealed to the court of common. pleas, and pursuant to section 3047 of the Code paid. the clerk of the district court $17.50, the costs of the action. This sum the clerk paid to the plaintiff. The judgment of the district court was reversed on appeal and the defendant demanded of the clerk repayment of said sum of $17.50. This the clerk refused, and the defendant moved for an order requiring the clerk to refund said sum.

Frederick E. Mather, for appellant.

Charles C. Bigelow, clerk, in person.

Sullivan . Remington Manufacturing Co.

J. F. DALY, J.-The clerk was not justified in paying over to the respondent the costs paid him to effect the appeal under section 3047, until the judgment had been affirmed on such appeal. Such costs are to be paid to the justice or to his clerk as a requisite of appeal, and not as a satisfaction of so much of the judgment appealed from. Such costs do not belong to respondent until affirmance; a payment of them to him instead of to the justice or clerk would not have been sufficient to effect the appeal (Ex parte Stephens, 6 Cowen, 69). The clerk must refund to the appellant the amount of costs paid, as the judgment has been reversed.

SULLIVAN, PUBLIC ADMINISTRATOR, APPELLANT, 0. THE REMINGTON MANUFACTURING COMPANY, RESPONDENTS.

SUPREME COURT, FIRST DEPARTMENT; GENERAL TERM, MAY, 1882.

$ 3271.

Security for costs.—Administrator not required to give, in action revived by him.

Section 3271 of the Code, which provides that in an action brought by or against an executor or administrator, the Court may require the plaintiff to give security for costs, does not apply to an action simply revived in favor of such a personal representative.

Appeal from an order requiring plaintiff to file security for costs.

The facts are stated in the opinion.

Henry Wehle, for appellant.

T. Richardson, for respondent.

Sullivan v. Remington Manufacturing Co.

PER CURIAM.-The action was brought by the intestate in his life time to recover a demand claimed to have been owing to him from the defendant, and an issue was joined and a reference ordered and testimony taken before the referee, previous to the time of his decease. Since then the action has been revived in behalf of the plaintiff as administrator, and he has been required to give security for the defendant's costs under the authority of section 3271 of the Code of Civil Procedure.* But that section is manifestly inapplicable, and does not include an action brought by the intestate during his life-time and after his decease revived by his personal representative. It is only applicable to actions brought by or against an executor or administrator, and does not apply to an action simply revived in favor of such a personal representative.

The provision in this respect is similar in its terms. to that relating to the recovery of costs in actions brought by administrators or executors, and that has been held not to include actions brought by the intestate or deceased in his life-time, and subsequently revived in favor of the personal representative. (Tindall c. Jones, 19 How. 469; and Merritt v. Thompson, 27 N. Y. 225.) These statutes have been framed substantially in the same terms, and that requires a similar construction to be given to both. And under the construction which by those authorities has been placed upon the provisions of the statute relating to costs, this section of the Code should not be extended to an action brought by the intestate in his life-time, and after his decease revived on behalf of his personal representative. The order accordingly was erroneous and should be reversed, with $10 costs and disbursements.

BRADY, P. J., and DANIELS, J., concurred.

*See 1 Civ. Pro. R. 15, 231.