(dissenting):
It is a sad state of things when a court can lawfully punish a sheriff because the court itself has done wrong. Let it be conceded that the proceedings were not in conformity with the Code, because the affidavit was not made the day the petition and schedule were presented to the court, but on the same day that the petition was made, still the attorney for this plaintiff was heard upon the preliminary application and upon the final order. So both orders recite. The plaintiff had her day in court to oppose the order of discharge. She did not object to the jurisdiction, she specified no statutory omission; she opposed the discharge upon the merits, and upon the merits the discharge was made. A certified copy of the order was given to the sheriff. It recited this appearance of the plaintiff’s attorney. It was made by a court having jurisdiction of the general subject of the person of the insolvent, and of this particular case. (Develin v. Cooper, 84 N. Y., 410.) The order was such as section 2212, Cdde Civil Procedure, commanded the sheriff to obey. It was regular on its face. The plaintiff, who upon the merits could make no case against the prisoner, ought not *9to be heard in her unconscionable pursuit of the sheriff to urge a defect which, if made before the court at the first hearing, would have been immediately rectified, and which because not then made it is our duty to declare waived.,
The judgment should be affirmed, with costs.
Judgment reversed, new trial granted, costs to abide event.