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Wilson v. Ryder

11 N.Y. St. Rep. 279 Court N.Y. City Ct. English

Delivered by McAdam, Ch. J.

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p. 279
Henry A. Wilson et al., Resp’ts, v. Stephen Ryder, App’lt.
(City Court of New York, General Term,
Filed October 1887 )

Headnote

Deposit m lieu op bail—Effect of judgment fob defendant from WHICH AN APPEAL HAS BEEN TAKEN.
When a cause is tried and results in a judgment for the defendant, the order of arrest issued in the action is vacated by operation of law and the defendant’s bail is discharged. If the defendant has deposited money in lieu of bail he is entitled to have the deposit returned, notwithstanding the fact that the plaintiif has appealed and given security to effect a stay. The adjudication is final beca se the order of arrest cannot be re-instated by a reversal of the judgment; a new order would have to issue to warrant the re-arrest of the defendant.
p. 280
The defendant was arrested under an order of arrest and and deposited $300 in lieu of bail. The case was tried, and resulted in a judgment dismissing the complaint. The defendant thereupon moved for an order directing the clerk to refund the deposit. Code, § 585. The court below denied the motion because the plaintiff had appealed from the judgment and given security to stay proceedings. The defendant appeals.
G. G. Dutcher, for app’lt; P. C. Tollman, for resp’ts.

—The judgment in favor of the defendant effectually discharged the order of arrest, notwithstanding the plaintiff’s appeal. The discharge is final, because the defendant cannot be re-arrested upon the order even if the judgment in his favor is reversed. The court cannot re-instate the order upon motion, although it may, in case of reversal of the judgment, issue a new order. Bowman v. Bowe, 40 Hun, 489 . Chancellor Kent, in Wood v. Dwight ( 7 Johns. Ch., 295 ), said: “When process is once discharged and dead it is gone forever, and never can be revived but by a new exercise of judicial power.” The same principle was declared in The People v. Bowe ( 81 N. Y. 43 ), and Bowman v. Bowe (supra). The deposit stands in lieu of actual custody of the defendant by the sheriff. Like other species of bail, it is a substitute fcr the body and when the corpus is legally discharged the substitute, which is accessory only, is discharged also This follows as a logical and necessary sequence. If the defendant had been in actual custody at the time of entry of judgment, in his favor, he would have been immediately discharged from confinement. The discharge would have left the defendant as if no arrest had been made. The final judgment in favor of the defendant, contemplated by section 585 of the Code, has been rendered, and, in the language of that section, “the sum deposited must be refunded to the defendant.” The order denying the motion for its return must, therefore, be reversed, and the application granted with costs.

Hall, J., concurs.

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