People ex rel. Roberts v. Bowe

27 N.Y. Sup. Ct. 85

Opinion

Per Curiam:

We are of opinion that the decision of the Court of Appeals, reversing the judgment of the Superior Court and ordering a new trial for errors occurring in the course of the trial, has no other legal effect than to restore the parties to the same position in which they stood before any trial in the action was had. The judgment and the execution founded thereon having by the decision of the Court of Appeals been held for naught there is no good reason for allowing that decision to operate further than above indicated.

If the order of arrest may be said to have been superseded by the execution against the persons of the defendants, issued upon the judgment since vacated, it cannot in reason be. claimed that such supersedure continues any longer than the judgment and execution are operative. When they ceased to have any effect the order resumed its former vigor, and it was the duty of the sheriff to continue to hold the relators by virtue of such order.

The writ must be dismissed and the relators remanded to the custody of the sheriff.

Present — Davis, P. J., Beady and Barrett, JJ.

Writ dismissed, relators remanded to the custody of the sheriff.