Howell v. Taussig

9 N.Y. St. Rep. 384

Opinion

Daniels, J.

The motion to discharge the same defendants from custody in the action of Benjamin Howell and others depended upon a different state of facts from those in the suit of the Havemeyer Sugar Refining Company.

In this action no judgment has been recdvered, and the only ground or authority that has been provided for their discharge is that contamed m the first part of section 572 of the Code, as it has been amended by chapter 672 of the Laws of 1886. That allows the defendants to be discharged if the plaintiff unreasonably delays the trial of the action, and while it has been stated that the defendants were discharged from arrest by giving the undertaking on the 11th of October, 1883, no fact has been set forth from which it can be assumed to have been proven that the plaintiff has unreasonably delayed the trial of the action. This is a fact to be affirmatively established in support of the application before it is allowed to prove successful. It was not so established in the application made in this case, and the order denying it was for that reason authorized, and it should be affirmed, but as the other has already been directed to be, without costs.

Van Brunt, P. J., and Brady, J., concur.