New York Guaranty & Indemnity Co. v. Roberts

After the expiration of three months from the entry of judgment, motion was made to discharge defendant, Andrew L. Roberts, from imprisonment, by reason of plaintiff’s neglect to charge him in execution, and that motion was denied. The sheriff’s excuse for not returning the execution against the property was that he had process in his hands issued prior to the execution in this action, in other actions, and that such actions are undetermined.

Thereupon defendant, Andrew L. Roberts, upon affidavits and certain stipulations duly executed and acknowledged, again moved that plaintiff be required by an order of this court to issue execution against his person. Upon which motion the order appealed from was made.

The stipulations were as follows :

SUPERIOR COURT OF THE CITY OF NEW YORK.

Whereas, an execution against the property of the defendants in the above entitled action was duly issued, on the 31st day of January, 1875, to Matthew T. Brennan, then sheriff of the city and county of Hew York, which execution has been duly transferred to you, and has not yet been returned, and

Whereas, I have executed and delivered to the plaintiff a stipulation demanding that an execution issue'against my jierson, and releasing the said plaintiff from liability by reason thereof.

Now I, Andrew L. Roberts, one of the defendants in the above entitled action, do hereby consent that you, the sheriff of the city and county of New York, do take my person in execution under an execution against the person to be issued herein by the plaintiff, and I do hereby release and discharge you, the said sheriff,

from all liability, claims, damages and suits, by reason of your executing the said execution against my person, as directed by the plaintiffs, in accordance with law, and as so demanded by me.

ANDREW L. ROBERTS.

June 29, 1877.

To Bernard Reilly, Esq., Sheriff, &c.

SUPERIOR COURT OF THE CITY OF NEW YORK.

Whereas an execution against the property of thé defendants in the above entitled action was issued herein, on the 31st day of January, 1875, to the sheriff of the city and county of New York, and the said execution has not been returned by the said sheriff, and by reason thereof plaintiff has not issued execution herein against the person of this defendant.

Now therefore I, Andrew L. Roberts, one of the defendants in the above entitled action, do hereby consent and demand that the plaintiff herein forthwith issue an execution against my person in this action, and in consideration thereof I do hereby agree to and with the plaintiff that the issuing of such execution and the taking of my person in execution thereunder shall in no wav prejudice the rights of the plaintiff under the at

tachment herein and the said execution against the property of the defendant, and that the plaintiffs shall have the same right to proceed with and to enforce the said execution against property as if an execution against my- person had not been issued, and I hereby release and discharge the plaintiff of, and from any and .all suits, claims and damages, by reason of the issuing of such execution against my person.

Dated June 29th, 1877.

ANDREW L. ROBERTS, AVILLIAM SUTFHEN, Attorneys for defendant Roberts.

NEW YORK SUPERIOR COURT.

The New York Guaranty and Indemnity Company of the 'City of New York against Andrew L. Roberts and Valentine Gleason el at.

Whereas, an execution against the property of the defendants in above entitled action has heretofore, and more than sixty days previous hereto, been issued to the sheriff of the city and county of New York, and the same has not ye A been returned, and whereas the said sheriff neglects and refuses to return said execution, and by reason thereof the plaintiff is unable, and believes it to be illegal, to issue execution against the persons of these defendants.

Now therefore, we, two of the above named defendants, now confined in Ludlow street jail, under an order of arrest in said action, do hereby consent that the plaintiff may forthwith issue execution against the persons of these two defendants, notwithstanding said

execution against the property of the defendants has not been returned, and we do hereby release the plaintiff from any suits, claims, or damages, by reason thereof.

And we do hereby severally demand that the plaintiff forthwith issue said execution against the persons of these two defendants.

ANDREW L. ROBERTS, VALENTINE GLEASON.

The following opinion was rendered at special term :

Sanford, J. —I denied the motion to discharge defendant from imprisonment under section 288 of the Code, on the ground that the unexecuted attachments, and outstanding execution against property in the hands of the Sheriff, sufficiently excused the omission of the plaintiff to charge defendant’s person in execution within three months after the entry of judgment, and constituted good cause to the contrary within the meaning of that section.

I am of opinion, however, that the provision of the statute, express or implied, which prohibits the issuing of an execution against the person, while there is an execution against his property not returned (2 R. S. p. 364, § 6; Code, § 288), are intended for the benefit of the execution debtor, and may be waived by him; that such waiving, accompanied by a stipulation to the effect that the remedies of the judgment creditor under his attachment and execution against property, shall be in no wise impaired by the issuing of an execution against the person of his debtor, and releasing him from all liability by reason thereof, removes all obstacles to the issuing of such an execution, and entitles the defendant to his discharge in so far as such outstanding attachments and executions against property constitute cause to the contrary.

The defendant.having now executed, acknowledged,

and tendered such waiver and stipulation is, in my opinion, entitled to be discharged, unless the plaintiff forthwith charge him in execution in compliance with his demand.

The order will therefore be that he be discharged from custody, unless execution be issued against his person within ten days after the service upon plaintiffs’ attorneys of a copy of this order, together with the stipulations submitted on this motion.