Carrigan v. Washburn

9 N.Y.S. 541, 28 N.Y. St. Rep. 156, 1889 N.Y. Misc. LEXIS 1513

Opinion

McAdam, C. J.

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. St. R. 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 herewitli has been filed.