Potts v. Davidson — 15 Abb. N. Cas. 185

Majority

p. 185

POTTS v. DAVIDSON.

N. Y. Supreme Court, First District, Special Term ;

December, 1884.

Headnote

Escape.—Stay op proceedings as against sheripp.

The stay under § 170 of Code Civ. Pro.—which stays proceedings against the sheriff until he can collect from the bondsman of an escaped judgment debtor,^[1] —is discretionary; and the court will not grant it where the sheriff has not proceeded with diligence.^[2]

Motion for stay.

p. 186

James Potts sued Alexander V. Davidson, as sheriff, &c., for an escape, and recovered judgment.

Defendant now moved to stay the plaintiff on his' judgment until defendant could collect from the sureties on the undertaking given by the escaped prisoner.

W. G. Peckham, for plaintiff, objected that defendant had not proceeded with due diligence.

E. J. Cramer and W. Bourke Cockran, for defendant, claimed that the stay had always been granted as of course.

The sheriff should have moved for á summary judgment against the sureties, immediately upon the entry of judgment against himself. Had he done so, this motion would probably have been unnecessary, as the amount sued for could have been collected within a short time. Certainly, the motion for summary judgment should have been madeparipassu with this motion. In its absence there is no evidence of diligence or good faith. The intention of section 170 of the Code, was to protect the sheriff while he is doing everything which the law permits, promptly and diligently to collect from the sureties. For aught that appears the sheriff has not sued the sureties yet. Under the circumstances he is not entitled to the favor which might otherwise have been accorded to him under section 170. The motion must be denied with costs, and the stay vacated.