Merchants' National Bank v. Mosher

54 How. Pr. 415

• Court: New York Supreme Court
• Decided: February 15, 1878
• Status: Published

Opinion

Hardin, J.

Under the former practice, the plaintiff could defeat the application for a supersedeas by issuing a ca. sa. before the application for a discharge was heard (1 Burrill, p. 427; 1 Caines, 167; Walsh agt. Hill, 3 John., 446; Bostwick agt. Goetzel, 57 N. Y., 586).

The amendment of section 288 of the Code in 1870 provided for a case when a defendant “ was in actual custody under an order of arrest.” The court of appeals say, that- “ provides only for the case of a defendant in actual custody ” (57 N. Y., 586). Section 572 of the Code of Civil Procedure provides, “ if the defendant is in actual custody by virtue of an order of arrest in the action * * * the defendant must be discharged from, custody.”

The defendant has not brought himself within the provisions of section 572, and the former practice still prevails, and it must be held that the execution issued February 4, 1878, defeats this motion (Walsh agt. Hill, 3 John., 446, .and cases supra; Smith agt. Knapp, 30 N. Y., 581; Bostwick agt. Wildey, 42 How. Pr., 245).

The motion must be denied with ten dollars costs.