23 Abb. N. Cas. 221 | City of New York Municipal Court | 1889
This is a motion for the issue of a supersedeas, and for an order perpetually staying the issue or enforcement of an execution against the-person of plaintiff in this action. The ground of the motion is that an execution against the body of plaintiff, against whom a judgment for costs in an action of tort was recovered by defendant, was not issued within 10 days after the return, unsatisfied, of an execution against plaintiff’s property. The defendant resists the motion on various grounds; admits that the execution was not issued within the 10 days, but seeks to excuse his delay by various reasons, among others by the engagements of his attorney, which last reason is of no avail, (Kelly v. Brownlow, 54 N. Y. Super. Ct. l29;) and claims that the granting or denial of the motion is, under section 572 of the Code of Civil Procedure, discretionary.
The objection of the defendant that plaintiff cannot make the motion because he is not in actual custody is, since the amendment of section 572, in the year 1886,
It has been held in numerous cases that the requirements of section 572, Code Civil Proc., as^ amended in 1886, requiring the discharge of a judgment debtor, are not peremptory, but that they authorize a denial of the application for a supersedeas, whenever reasonable cause is shown why such application should not be granted. De Silva v. Holden, supra; Hobbs v. Bashford, 45 Hun, 592; Kelly v. Brownlow, 54 N. Y. Super. Ct. 129; People v. Grant, 13 Civil Proc. R. 209. The test is, has the judgment creditor been vigilant? If he has, the court has discretion to deny the application for a supersedeas. In.my opinion, in the present case, no neglect has been shown by"the judgment creditor which would entitle the plaintiff to the relief asked for.
In addition to this, there is a ground, not touched upon by either party upon the motion, which seems to me to be fatal to the application. An examination of section 572, under which this motion is made, shows that it applies only to cases where the neglect or delay is that of the plaintiff. It will be seen that every provision of the section has reference to the discharge of the defendant, and does not apply to the case of the plaintiff, against whose body an execution has been issued by defendant. If this reading of the section is correct, the plaintiff cannot succeed in the present application. The motion must be denied.
