40 N.Y. 133 (1869)
Agnes A. Gaston sued for divorce and alimony was awarded pending the trial. Her husband, Albert G. Gaston, failed to make the payments he was ordered to pay, and the court issued an attachment against him directing the Brooklyn sheriff to hold Mr. Gaston pending payment. Deputy Sheriff Ray arrested Mr. Gaston and brought him before Sheriff Campbell. The sheriff released Mr. Gaston from custody and, on April 30, 1861, returned the precept to the court marked “unexecuted, for the reason that the defendant within named, Albert G. Gaston, is exempt from arrest, he having been mustered into actual military service of the United States.”
In Brooklyn City Court, Campbell was accused of misconduct in failing to execute the process. In his defense, Campbell asserted that Gaston, “at the time of the issuing of it, was a commissioned officer, viz.: paymaster in the 14th regiment New York militia, and that that regiment was then awaiting orders to proceed to Washington, or wherever else said regiment might be ordered by the government of the United States.”
Brooklyn City Court Judge Reynolds held that Gaston was properly subject to arrest under the court’s order, and imposed on the Sheriff a fine of $45. The sheriff appealed to the Supreme Court, which affirmed the order of Brooklyn City Court. The sheriff then appealed to the New York Court of Appeals, where John H. Bergen appeared for the appellant and Samuel Hand for the People.
Writing for the Court of Appeals, Judge Charles Mason stated that:
The important question, in the case before us, is, whether Gaston was privileged from arrest. He was, at the time, a commissioned officer, a paymaster, in the 14th regiment, New York State militia. This regiment was then awaiting orders to proceed to Washington, or wherever else the said regiment might be ordered by the government of the United States, and was, not long after, ordered to Washington, D. C., and I think it is fair to assume, from the case, that at the time the sheriff had this process in his hands, and Gaston went to the sheriff’s office, with the deputy sheriff, and was permitted, by the sheriff, to go at large, he must be regarded as called into the service of the United States. This regiment had, undoubtedly, at that time, been called for in the service of the United States. The case of Houston v. Moore (5 Wheat. R., 1) decides that the order issued, calling the regiment into such service, does not change their character, and that the service does not commence, until the arrival of the militia at the place of rendezvous . . . . I infer that this regiment had actually met at their place of rendezvous, in Brooklyn, at the time, and were awaiting orders to go forward to the seat of war, and so it is claimed by both parties.
The sheriff’s return states that Gaston was exempt from arrest, he having been mustered into the actual military service of the United States, and the relator’s counsel claim that he was in the military service of the United States, and for that reason cannot claim the exemption of our State statute, in regard to the militia.
. . . . The fact that when employed in the service of the government of the United States, they are necessarily placed under the army regulations of the United States, does not alter the case; they are still a distinct military force, belonging to the State. If I am right in the views above expressed, then Gaston was exempt from arrest on civil process, and the sheriff is excused, if this process is to be regarded as civil process; and it has never been questioned but such a process as this, to enforce a civil remedy by the collection of a specified sum of money, as alimony and costs, was a civil process.
Judge William Murray wrote a separate opinion to reverse the orders of the courts below, and with the concurrence of Chief Judge Ward Hunt and Judges Louis B. Woodruff and Charles Daniels, the Court of Appeals held that the order of the General Term of the Supreme Court, and the City Court of Brooklyn, and all the proceedings, must be reversed with costs, for the reason that Gaston was privileged from arrest.
In dissent, Judge Martin Grover stated that, by the true construction of the State statute of exemption, it was limited to persons engaged in military service under the State, and was not applicable to the militia, when employed in the service of the United States, and he would have affirmed the orders of the courts below as would Judges John A. Lott and Amaziah James.