95 N.Y. 246, Bowles v. Habermann

Citation:95 N.Y. 246
Party Name:THOMAS HENRY BOWLES, an Infant by Guardian, etc., Respondent, v. FREDERICK B. HABERMANN, Appellant.
Case Date:March 04, 1884
Court:New York Court of Appeals

Page 246

95 N.Y. 246

THOMAS HENRY BOWLES, an Infant by Guardian, etc., Respondent,

v.

FREDERICK B. HABERMANN, Appellant.

New York Court of Appeal

March 4, 1884

Argued February 26, 1884.

Page 247

COUNSEL

George H. Fletcher for motion.

Homer A. Nelson opposed.

EARL, J.

The plaintiff sued the defendant in an action of tort, and recovered a verdict upon which judgment was entered. The defendant appealed to the General Term, where the judgment was affirmed, and he then appealed to this court. After the appeal to this court the plaintiff was convicted of a felony, and sentenced to imprisonment in the Kings county penitentiary for the term of ten years. And now the defendant has made this motion that the rights of the plaintiff in this action be declared suspended, and that the hearing of this appeal be stayed during the term of plaintiff's sentence.

The motion is based upon section 707 of the Penal Code, which provides that 'a sentence of imprisonment in a State prison for any term less than for life forfeits all the public offices and suspends, during the term of the sentence, all the civil rights, and all private trusts, authority, or powers of, or held by, the person sentenced.' The claim of the defendant, as I understand it, is that under this section all the rights of the plaintiff in this action are suspended during the term of his sentence, so that he cannot defend this appeal, or enforce his judgment.

The section cited is a substantial re-enactment of the provisions contained in the Revised Statutes (2 R. S. 701, § 19).It is difficult to ascertain precisely what the Legislature meant by the words 'civil rights.' Ordinarily they must mean all those rights which the laws give a person--which depend upon the laws of the community in which he lives, and of which he is a member.

Section 19 of the Revised Statutes has been under consideration in several cases. In O'Brien v. Hagan (1 Duer, 664), the plaintiff, after the commencement of his action, was convicted of a felony, and sentenced to imprisonment in a State

Page 248

prison for a term of years; and after the sentence, the defendant obtained from him a release of the demand or damage for the recovery of which the suit had been brought, and moved for leave to file a supplemental answer setting up the release as a bar; and OAKLEY, Ch. J., after consulting his associate judges, held that the effect of the section was to abate the suit, and that consequently no further proceedings could be had therein until it was properly revived. But the judges declined to give any opinion...

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