Purchase v. Bellows — 19 Abb. Pr. 306

Majority

p. 306

PURCHASE a. BELLOWS.

New York Superior Court ;

General Term, November, 1862.

Headnote

Execution against the Pebson.-—Abeest foe Costs.

A defendant succeeding, and recovering judgment for costs, in an action to recover the possession of specific personal property, in which no order for his arrest has heen made, cannot issue execution against the person of the plaintiff upon such judgment.^[1]

Appeal from an order granting a motion by the plaintiff to set aside an execution against his person.

This action was brought by John Purchase against George F. Bellows, to recover the possession of certain personal property alleged to be wrongfully detained, with damages for its detention.

Judgment was rendered in favor of the defendant for

p. 307

the costs of the action. After an execution upon this judgment, issued against the property of the plaintiff, had been returned unsatisfied, the defendant issued an execution against plaintiff’s pei’son. The plaintiff moved at chambers to set aside this execution, and the motion was granted. The decision is reported 14 Ante, 357.

From the order setting aside the execution the defendant appealed to the court at general term.

W. Wells, for the defendant, appellant,

cited Roberts a. Randell, 3 Sandf., 709 ; Chappel a. Skinner, 6 How. Pr., 339 ; Kloppenberg a. Neefus, 4 Sandf., 655 ; Merritt a. Carpenter, 30 Barb., 61 ; Brush a. Mullen, 12 Abbotts’ Pr., 242; Code, § 288.

Thos. Stevenson, for the plaintiff, respondent,

cited Code, § 179, subd. 3; Ib., §206; Chappel a. Skinner, 6 How. Pr., 338 ; Mulvey a. Davidson, 8 How. Pr., 111 ; Code, § 167, subd. 6; Hoffman's Provisional Remedies, 9, 23, 106; 3 How. Pr., 297 ; 18 Ib., 94; Code, § 289, subd. 4 ; Ib., § 288.

This is an action to recover the possession of personal property. No order for the arrest ¿f the defendant was obtained.. He succeeded in the action. Can an execution issue against the person of the plaintiff for the costs ? ■ If the plaintiff had succeeded, no execution against the person could issue against the defendant. (Hoff, on Prov. Rem., 22, 23.) The plaintiff cannot be arrested, unless a plaintiff who fails to recover, and against whom a judgment is rendered for costs, may be subjected to execution against his body, in an action where no such execution could issue against the defendant, if the plaintiff had succeeded. Section 178 [153] declares that no person shall be arrested in a civil action, except as prescribed by that act.

The order should be affirmed.

Order affirmed, with ten dollars costs.

Footnotes

* Present—Bosworth, Ch. J., and Moncrief, Robertson, Barbour, and Monell, JJ..