Gallagher v. Dolan

27 Misc. 122, 57 N.Y.S. 334

Opinion

Giegerich, J.

The defendant being held under a body execution, issued upon a judgment in an action for negligence, this motion is made to set it aside, upon the ground that the negligence in suit consisted of an omission rather than a willful wrong, and the case^f Lasche v. Dearing, 23 Misc. Rep. 722, is cited as authority for the distinction. Examination of the case referred to shows that the reasoning adopted would oppose the issuance of an execution against the person in any case where the cause of action is for negligence, as distinguished from an unlawful trespass against the person, and-this is contrary to controlling authority. Ritterma’ v. Ropes, 52 N. Y. Super. Ct. 236, and cases cited; Miller v. Woodhead, 52 Hun, 127.

Motion denied, with $10 costs-