DOUGLASS v. HABERSTRO, 82 N.Y. 572 (1880)

ALICE DOUGLASS, Appellant, v. JOSEPH L. HABERSTRO, as Sheriff, etc., Respondent.

Court of Appeals of the State of New York.Argued November 9, 1880
Decided November 16, 1880

Page 573

Osgood, Titus Moot for appellant.

John Campbell Hubbell for respondent.

Page 574

DANFORTH, J.

The circumstances disclosed upon this proceeding were enough to call for the action of the Special Term, and the order there made shows upon its face that it was granted, not as a matter of right but of favor, for it was available to the defendant only upon his complying with certain substantial conditions thereby imposed. Its terms make plausible the appellant’s contention, that if the conditions were performed and the judgment debtor again placed in custody, the end of the law, which, at the beginning of the action, permitted his arrest, would have been answered; but the order was subject to review by the General Term of the Supreme Court (Code of Civil Pro., § 1347, sub. 1; The Col. Ins. Co. v Force, 8 How. Pr. 353), and that court came to the conclusion that the case was not sufficient to warrant the relief granted by the Special Term. By their decision the defendant and this court are bound, for the facts stated in the appeal papers do in one view support it, and as the relief sought is within the discretionary power of the Supreme Court to grant or deny, its exercise cannot be reviewed by us. (Code of Civil Pro., § 190, sub. 2; Liddell v. Paton, 67 N.Y. 393; Wallace v. Castle,
68 id. 370; Brady v. Brundage, 59 id. 313; Mills v Hildreth, 81 id. 91, decided June 1, 1880.) These cases are an answer to the argument of the learned counsel for the appellant, and require that the appeal should be dismissed.