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Boeger v. Hoffman

58 A.D. 540 Court N.Y. App. Div. English

Delivered by Rumsey, J.:

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p. 540
Henry Boeger, as President of the Lincoln Kranken Unterstutzungs Vereins No. 2, Appellant, v. Joseph A. Hoffman, Respondent.

Headnote

Preference on calendar—where a party has giren hail and been released from arrest the case is not preferred.
A defendant in an action, who was imprisoned under an order of arrest, but gave bail and was thereupon released, is not imprisoned under an order of arrest within the meaning of rule 36 of the General Rules of Practice, which, in such a case, gives the action a preference on the calendar.
Appeal by the plaintiff, Henry Boeger, as president of the Lincoln Kranken Unterstutzungs Yereins Ho. 2, from an order of the • Supreme Court, made at the Hew Y ork Trial Term and entered in the office of- the clerk of the county of Hew York on the 16th day of January, 1901, denying the plaintiff’s motion for a preference upon the calendar of the court.
W. Edgar Goldman, for the appellant.'
George A. Baker, for the respondent.

The claim for a preference was made under general rule 36, on the ground that the defendant was imprisoned under an order of arrest. It appeared, however, that he had given bail and that having, given bail he had been “ discharged from arrest ” as it is expressed in section 573 of the Code of Civil Procedure. Clearly, having been discharged from arrest, he cannot legally be said to be imprisoned under an order of arrest, and for that reason .the preference should have been denied.

The plaintiff cites the case of Knox v. Dubroff ( 17 App. Div. 290 ) as authority that the action should have been preferred, but it appeared in that case that the plaintiff had obtained an attachment upon the defendant’s property, and the action was held to be preferable upon that ground. The question discussed in Havemeyer

p. 541
Sugar Refining Co. v. Taussig ( 19 Abb. N. C. 57 ) has nothing to do with the case at bar. The order, therefore, should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

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