Bowman v. Bowe — 2 N.Y. St. Rep. 96

Majority

p. 96

Mary Bowman, respondent, v. Thomas Bowe, appellant.

(Supreme Court, General Term, First Department,

Filed June 1, 1886.)

Headnote

Practice—-Order or arrest; carrot be revived wher orce dead.

An order in an action was granted holding each of the defendants to hail, and all of them except Bowe were arrested thereunder. At the trial the complaint was dismissed, and the defendants who were arrested were' discharged. This judgment was reversed on appeal and a retrial resulted in a verdict against all the defendants. On plaintiff’s application an order ivas granted reinstating the original order of arrest. Held, that the original order, which was in the nature of an original process, when once dead was gone forever, and could not he reinstated. That the proper practice was a new’ order of arrest founded on the statement of all the facts necessary for an exposition of the character of the action and the right of arrest.

Appeal from orders reinstating the order of arrest issued herein, and the name in order of arrest which had been stricken out.

Joseph E. Newburger, for appellant, Thomas Bowe.

Henry Wehle, for respondent, Mary Bowman.

It appears from the record, that on the 13th day of April, 1880, an order was granted holding each of the defendants to bail in the sum of two thousand dollars, and that all the defendants except Bowe were arrested thereunder, and that on the third day of May following this action was brought to trial and the complaint dismissed, and thereupon the defendants other than Bowe were discharged from custody. The plaintiff, however, appealed to the general term of this court from the judgment of dismis

p. 97

sal, and that judgment was reversed. The cause was subsequently retried and resulted in a verdict against all the defendants save Dunn. The plaintiff thereupon applied for a reinstatement of the order of arrest against these judgment debtors.

The order to show cause was dated May 4, 1885, and the motion was granted by order entered the 19th of May following, which declared that the order of arrest originally .granted was reinstated with the same force and effect as it had prior to May 3, 1880, on which day the complaint, as we have seen, was dismissed, and the sheriff was directed to arrest and hold the defendants, as required by that order. ■Subsequently, and on the 25th of May, the plaintiff’s attorney gave notice that he would apply to Justice Law•rence on the 26th of May, 1885, for an order that the order be declared as in full force as against the defendant Bowe as originally granted, and this was founded upon an affidavit, in which he stated that the name of the defendant Bowe appeared to be mutilated, i. e, erased with a pen, which it was alleged was done by some person without authority, as the order when originally granted contained the name of the defendant Bowe, and a provision for his arrest, and that no order was ever made authorizing the erasure of the same. The result was an order that the original order of arrest be restored to its condition when .granted, so that the name of Thomas Bowe should appear immediately after the words, “You are required forthwith ■to arrest.” From both of these orders the defendant Bowe has taken an appeal.

The question presented upon this appeal is whether the ■order of arrest, which was in the nature of original process, •can be revived on such an application as made herein and granted. The defendants arrested were discharged from custody when the complaint was dismissed, and the result ■of that judgment was undoubtedly to supersede the order of arrest, which was swallowed up by the judgment. This rule has been declared in the case of The People ex rel. Roberts v. Bowe ( 81 N. Y., 43 ). The court said in that case: “ Suppose the original judgment had been in favor of the relators, and they had been discharged. Could they have been retaken upon the same order? Or, suppose they had given bail for the jail liberties; the same result might have followed.” And, further, that no authority had been cited in favor of the doctrine contended for; and it seemed to be more in accordance with the general principles applicable to process that when once dead it was gone forever. But the court added: “ We do not mean to intimate that a new order might not be obtained. ”

p. 98

It may be noted here that no authority has been cited by the respondent’s counsel to sustain the doctrine contended for in this case.

There was no application made here for a new order. The facts which would be necessary to obtain it were not set forth in the affidavit. The application was to show cause why an order should not be reinstated, and all the proceedings were based upon the idea of a revival or resurrection of the original order. And, furthermore, it was. not an application for a new order founded upon the statement of all the facts necessary for an exposition of the character of the action and of the right of arrest.

For these reasons, and on the authority of the case cited, it is thought that orders appealed from should be reversed, with ten dollars costs and the disbursements as to one appeal only.

Daniels, J., concurs.