People ex rel. Bicinelli v. Dunn , 54 N.Y.S. 194 ( 1898 )

FREEDMAN, J.

The question whether or not the summons was duly served is not available on habeas corpus. Prima facie proof of service by a marshal having been made, the remedy is by motion in the court out of which the summons issued. Whether or not the relator was lawfully arrested in Brooklyn by a marshal of the borough of Manhattan under and by virtue of an execution against his body, issued upon a judgment recovered in a municipal court sitting in the borough of Manhattan, depends upon the provisions of the charter of Greater New York. Section 1358 provides that the several boroughs composing the city of New York are divided into districts, in each of which sessions of the municipal court created by said charter shall be held. By sections 1359-1363 it is provided that the borough of the Bronx shall have two districts; the borough of Manhattan, eleven; the borough of Brooklyn, five; the borough of Queens, three; and the borough of Richmond, two. And section 1368 provides:

“The municipal court in any district shall have power to send its process and other mandates in an action or special proceeding of which it has jurisdiction, into any district or part of the city of New York for service of execution, and to enforce obedience thereto, and such process and mandates may be served in any district or part of the city of New York, as constituted by this act.”

Under this section I am bound to hold that, inasmuch as the court below had jurisdiction to render the judgment upon which the execution in question was issued, the marshal had the right under it to take the body of the relator in the borough of Brooklyn. The writ must be dismissed, and the relator remanded.