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Bull v. Melliss

13 Abb. Pr. 241 Court Supreme Court, First District ; English

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p. 241
BULL a. MELLISS.
Supreme Court, First District ;
General Term, September, 1861.

Headnote

Execution against the Beeson.
When an order of arrest has been granted against a defendant, as a provisional remedy, an execution-may be issued against his person, upon judgment against him, without any order of the court.[1]
A motion for leave to issue such an execution, under such circumstances, should not be denied, but dismissed.
p. 242
Appeal from an order denying leave to issue execution against the persons of the defendants.
The court had ordered the arrest of the defendants during the pendency of this action, and upon appeal the order was
p. 243
affirmed by the general term, upon facts which are fully stated in our report of this case. (9 Ante, 58.) The plaintiff having subsequently recovered judgment, moved at special term for leave to issue execution against the person, upon the same state of facts. The motion was denied, and the plaintiff appealed.
William E. Curtis,
for the appellant, insisted that an order of arrest haying been granted and enforced, and sustained at general term, plaintiff was entitled to leave to issue execution against the person. ( 17 How. Pr., 481 .)
James T. Brady,
for the respondent, urged that the decision of the court at general term did not conclude the justice to whom the application for leave to issue execution was made, because the determination of the latter was founded on the report of the referee in the cause; and that of the court at general term was founded on conflicting affidavits.

—The general term having decided that the defendants were liable to arrest, it was not necessary to make any new motion for leave to issue execution against the person in. the same case.

Even if such motion is made, so long as the order of arrest stands, and that order is made or affirmed by the general term, a judge at chambers should be bound by such decision, where the same has been decided upon the merits. Such an order

p. 244
ought not to be reversed at special term, unless some new matter arising since the order was made is shown to warrant granting'the motion.

This ^motion was unnecessarily made, and should have been dismissed. The order denying the motion should be reversed, and an order dismissing the motion madé, without costs.

Footnotes

  1. * Present, Ingraham, Clerke, and Leonard, JJ.