Majority
p. 150SWEET v. NORRIS. N. Y. Supreme Court, Chenango County, Special Term ; June, 1887.
Headnote
1. Discharge from imprisonment; neglect to issue body execution.] The limitations of time prescribed in Code Civ. Pro. § 572, as amended by L. 1886, c. 672, are to prevent a plaintiff, having a defendant in actual or constructive imprisonment under an order of arrest, from continuing his imprisonment indefinitely by delaying the entry of his judgment, or by delaying to isstie his execution ; and this section does not apply to an action in which no order of arrest was issued.2. The same.] Hence, where the defendant has been arrested on execution against his person, in an action in which no order of arrest was issued, he is not entitled to have such execution set aside merely because it was not issued within ten days after the return of an execution against his property, nor within three months after entry of the final judgment.[1]
Motion to set aside execution against the person.
September 10, 1886, a judgment was entered in the office of the clerk of the county of Chenango for $1,326.12 damages and costs, in an action, the nature of which authorizes the imprisonment of the defendant upon an execution. September 11, 1886, an execution was duly issued against the defendant’s property, which was duly returned wholly unsatisfied, and November 11, 1886, filed in said clerk’s office. January 3, 1887, an execution was issued against defendant’s person to the sheriff of the city and county of New York, who, January 8, 1887, arrested the defendant
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thereon, and January 10, 1887, admitted him to the liberties of the jail upon receiving a bond pursuant to the Code of Civil Procedure, §§ 149 and 150, and thereupon said execution was returned, and January 13, 1887, filed in said clerk’s office. April 6, 1887, defendant escaped from the liberties of said jail, and while he was so at large, he and his sureties were sued.
The defendant moves for an order setting aside the execution against defendant’s person, and for such other relief as may be just, because it was not issued : 1. “ Within ten days after the return of the execution against the property;” 2. Nor “ within three months after the entry of the judgment,” as prescribed by Code of Civil Procedure,§572, as amended by L. 1886, c. 672, which reads as follows:
“ Except in a case where an order of arrest can be granted only by the court, if the plaintiff unreasonably delays the trial of the action .... or neglects to issue execution against the person of the defendant within ten days after the return of the execution against the property, and in any event neglects to issue the same within three months after the entry of the judgment .... the defendant must upon his application, made upon notice to the plaintiff, be discharged from custody if he has already been taken under the mandate against him in such action ; or if he has not yet been imprisoned therein, be relieved from imprisonment by virtue of such mandate, by the court in which the action was commenced, unless reasonable cause is shown why the application should not be granted. A defendant discharged as prescribed in this section shall not be arrested upon an execution issued upon the judgment in the action.”
T. S. & H. D. Newton, for the defendant and the motion.
Albert F. Gladding, for the plaintiff, opposed.
The limitations of time prescribed in section 572, are to prevent a plaintiff, having a defendant in
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actual or constructive imprisonment under an order of arrest, from continuing his imprisonment indefinitely by delaying the entry of his judgment, or by delaying to issue his execution. Before the amendment to this section, plaintiffs sometimes omitted to enter their judgments or to issue their executions for a long period, and thus held the defendants in actual or constructive imprisonment under such order, and it was for the purpose of preventing this abuse that this section was amended.
Under an execution for the collection of less than $500 a defendant may be discharged at any time by giving fourteen days’ notice, and surrendering all his property not exempt by law from execution (Code Civ. Pro. §§ 2202, 2205), and he cannot be imprisoned more than three months (Ib. § 111).[1] Under an execution for the collection of $500 or more, a defendant may be discharged after he has been imprisoned three months, by giving fourteen days’ notice and surrendering all his property not exempt by law from execution (Code Civ. Pro. §§ 2202, 2205), and he cannot be imprisoned more than six months (Ib. § 111). Section 512 is only applicable in an action in which an order of arrest has been issued.
The motion is denied with costs.
* See Levy v. Salomon, ante, p. 52