Lapeous v. Hart

9 How. Pr. 541

• Court: New York Supreme Court
• Decided: June 15, 1854
• Status: Published

Opinion

Harris, Justice.

The defendant is mistaken in supposing that the order to stay proceedings in the action prohibited the plaintiff from obtaining an order of arrest. Such an order has reference to the ordinary proceedings in the action only. The plaintiff, while' the stay of proceedings remained operative, could not perfect- his judgment, but he might institute proceedings to have the order itself vacated. So, too, while he might not proceed to obtain the relief for which the action is brought, he might proceed to obtain any temporary relief to which he may be entitled. The application for the order of arrest, therefore, was not a violation of the order staying the plaintiff’s proceedings. ■

Nor can the motion prevail upon the other ground. It appeared by the affidavit, upon which the order of arrest was granted, that the action was brouglit to recover damages for an injury to the person of the plaintiff. This was enough to give the judge jurisdiction. It then became a matter of discretion whether or not the order should be allowed. The manner in which that discretion has been exercised is not the subject of review upon a motion to vacate the order. The motion must, therefore, be denied with costs.