Weingart v. Whynman

247 A.D. 814

Opinion

Order granting defendant’s motion to vacate an execution against his person and directing his release from imprisonment reversed on the facts, without costs, motion denied, without costs, execution reinstated, and the sheriff of Westchester county directed to rearrest and recommit the defendant to the jail of his county until he pay the judgment or be discharged according to law. There is no showing by the defendant in support of his application as to the total sums which he received by virtue of his misuse of his office and misappropriation thereof, nor as to his disposition of those moneys. Further, we are of opinion that, under the circumstances of this case, inability to pay is insufficient upon which to predicate a release based upon the discretion of the court under the provisions of section 775 of the Judiciary Law, even if that law be applicable, which we need not decide in this case. Young, Hagarty, Carswell and Davis, JJ., concur; Lazansky, P. J., concurs in result.