Knight v. Vanderbilt — 45 N.Y. St. Rep. 759

Majority

p. 759

Samuel J. Knight, Resp’t, v. Henry S. Vanderbilt, App’lt

(Supreme Court, General Term, First Department,

Filed March 31, 1892.)

Headnote

Arrest—Application for discharge—Code Civ. Pro., § 573.

Upon application by a defendant to be discharged from arrest under a mandate against him, or to be relieved from imprisonment if he has not been arrested, it is the duty of the court to consider whether reasonable cause has been shown why the application should not be granted.

Appeal from order denying motion to vacate order of arrest The order of arrest in this case was granted after verdict rendered and was served thirteen days after such verdict Judgment was not entered until after the motion to vacate was made. The mo

p. 760

tian was upon the ground, of failure to enter the judgment within ten days, under § 572 of the Code.

John Notman, for app’lt; L.'L. Kellogg, for resp’t.

Section 572 of the Code, under which this application is made, provides that a defendant arrested in a civil action, if the plaintiff unreasonably delays the trial of the action or neglects to enter judgment therein within ten days after it is in his power to do so, must upon his application be discharged from custody if he has already been taken under the mandate of another, or if he has not yet been imprisoned that he be relieved from imprisonment by virtue of such mandate by the court in which the action was commenced, unless reasonable cause is shown why the application should not be granted.

The only application mentioned in the section is the application made by the defendant upon notice to the plaintiff, either to be discharged from custody if he has already been taken under a mandate against him in such action, or if he has not yet been imprisoned, to be relieved from imprisonment by virtue of such mandate, and the provision that the court should grant the order unless reasonable cause is shown applies to this application whether made to discharge him from arrest if in custody, or to relieve him from arrest if not in custody.

We' think, therefore, that it was the duty of the court below to consider whether reasonable cause was shown why the defendant’s application should not be granted, and we concur in the conclusion that in this case reasonable cause was shown and that the application was properly denied.

The order should be affirmed, with ten dollars costs and disbursements.

Yam Brunt, P. J., O’Brien and Ingraham, JJ., concur.