Opinion
December, 1934.
Judgment in action against a sheriff to recover for an escape, rendered in favor of the defendant dismissing the complaint on the merits, and order amending said judgment, affirmed, with costs. We are of opinion that, assuming that the order paroling the individual held by the defendant under a body execution would otherwise have been void because of lack of jurisdiction or of failure to recite jurisdictional facts, the plaintiff, nevertheless, accepted benefits under the order and is deemed to have acquiesced in the terms and conditions of the order and to have consented to it. ( Katz v. Massachusetts Bonding Ins. Co., 257 N.Y. 365.) Lazansky, P.J., Kapper, Hagarty and Scudder, JJ., concur; Davis, J., dissents and votes for reversal on the ground that there was lack of jurisdiction in the court when it granted the order directing the sheriff to release the civil prisoner on parole, and that such order was made without legal authority and was void. It does not sufficiently appear that the plaintiff consented to the making of such order. Even if that fact clearly appeared, it is doubtful that jurisdiction would have been conferred on the court in the absence of proper procedure to discharge the civil prisoner then confined to the jail. [ 151 Misc. 159.]