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Schmidt v. Heitner

45 N.Y. Super. Ct. 334 13 Jones & S. 334 Court N.Y. Super. Ct. Decision date 1879-06-13 English

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p. 334
JULIA SCHMIDT, Plaintiff and Appellant, v. JOHN HEITNER, Defendant and Respondent.
Before Sedgwick and Freedman, JJ.
Decided June 13, 1879.

Headnote

Execution against the person.
Section 572 of the Code of Civil Procedure provides that an. execution against the person must be issued within three months after entry of judgment, where the defendant is in actual custody by virtue of an order of arrest in the action.
A defendant released from the order of arrest in the action, and on bail, is not in actual custody within the true intent and meaning of the term, as used in the section referred to.
It seems that, in case of bail to the limits of the jail, a different rule prevsils, for in such case the person is really imprisoned upon an execution, within the limits of the jail.
Appeal from an order vacating and setting aside an execution against the body of the defendant.
The facts presented on the hearing of the motion were as follows :—
About May 21, 1875, an order of arrest was issued against defendant; defendant was arrested and immediately gave bail, and remained and was released on said bail ever since. On October 24, 1877, judgment was recovered and entered against defendant.
Execution against the property of defendant was returned January 9, 1878, unsatisfied.
p. 335
Execution against the person of defendant was issued October 21, 1878.
The court, by an order, vacated the execution against the person, on the ground that it had not been issued within three months after the entry of judgment, and the plaintiff appealed.
John P. Schuchman, attorney, for appellant.
David Levy, attorney, for respondent.

I do not see how the order appealed from can be sustained. Section 572 of the Code of Civil Procedure applies only to defendants in actual custody. A defendant released on bail is not in actual custody, within the true intent and meaning of the term, as used in the section referred to.

Section 288 of the former Code contained a similar provision, and, in Bostwick v. Goetzel ( 57 N. Y. 582 , affirming 34 N. Y. Super. Ct. 23 ), was held inapplicable to the case of a defendant at large on bail. Coman v. Storm ( 2 How. Pr. 84 ) is not in point. In that case the defendant, though enjoying the liberties of the jail, was really imprisoned, upon an execution against his person, within the limits of the jail.

The order should be reversed, with costs, and the motion denied, with ten dollars costs.

Sedgwick, J., concurred.

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