Carrigan v. Washburn — 28 N.Y. St. Rep. 156

Majority

p. 156

George Carrigan, Pl’ff, v. Henry L. Washburn, Imp’ld, Def't.

(City Court of New York, Special Term,

Filed December 23, 1889.)

Headnote

Execution against person—Effect of reversal of order setting aside.

Tlie reversal of an order setting aside an order vacating an execution, against the person does not reinstate the process and defendant cannot he rearrested under it; but he is liable to arrest on new process.

The defendant was arrested under an execution against his per- ' son, May 17, 1888, and upon motion the writ was set aside as void. Upon appeal, the order setting aside the execution was reversed, with $37.12 costs. The plaintiff now applies for an order commanding the sheriff to rearrest the defendant under the old process.

Harrison & Langdon, for application.

When process is once discharged and dead, it-is gone forever and can never be revived but by a new exercise of judicial power. Wood v. Dwight, 7 Johns. Ch., 295 ; Wilson v. Ryder, 11 N. Y. State Rep., 279. The defendant cannot be recommitted under the old process, but having procured his discharge on an order afterwards reversed, is liable to arrest on new process. The restitution which follows every order of reversal must in this instance be enforced by the issuing of a new writ,, as in case of escape. Code, § 1492. An injunction order set. aside is not reinstated by a reversal of the order, the remedy being-a new application. Wood v. Dwight, supra. The plaintiff may issue a new execution against the person of the defendant for the balance due on the judgment, and may issue an execution in the nature of a precept against the personal property of the defendant for the costs of appeal, Code, § 779, these being in the-nature of motion costs. Phipps v. Carman, 26 Hun, 518 . An. order in accordance herewith has been filed.