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Gallagher v. Dolan

57 N.Y.S. 334 Court N.Y. Sup. Ct. Decision date 1899-04-13 English

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Majority

p. 334
(27 Misc. Rep. 122.)
GALLAGHER v. DOLAN.
(Supreme Court, Special Term, New York County.
April 13, 1899.)

Headnote

Body Execution—Setting Aside.
A body execution on a judgment in an action for negligence will not be set aside on the ground that the negligence consisted of an omission, rather than a willful wrong.
Action by John Gallagher, an infant, by Anthony Gallagher, his guardian ad litem, against James F. Dolan. Judgment for plaintiff. Motion to set aside an execution against the person denied.
Hamilton & Griffing, for the motion.
Louis Steckler, opposed.

J. The defendant being held under a body execu_tion issued upon a judgment in an action for negligence, this motion is made to set it aside, upon the ground that the negligence in suit consisted of an omission, rather than a willful wrong; and the case of Lasche v. Dearing, 23 Misc. Rep. 722 , 53 N. Y. Supp. 58 , is cited as authority for the distinction. Examination of the case referred to shows that the reasoning adopted would oppose the issuance of an execution against the person in any case where the cause of action is for negligence, as distinguished from an unlawful trespass against the person; and this is contrary to controlling author-' ity. Ritterman v. Ropes, 52 N. Y. Super. Ct. 236 , and cases cited; Miller v. Woodhead, 52 Hun, 127 , 5 N. Y. Supp. 88 .

Motion denied, with $10 costs.

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