16 N.Y.S. 126 | N.Y. Sup. Ct. | 1891
On the 11th day of December, 1890, judgment was rendered against the defendant in favor of the plaintiff in an action of conversion, and on January 11, 1891, an execution against the defendant’s property was issued to the sheriff, who returned the same unsatisfied January 20, 1891, of which return plaintiff had no notice until February 20, 1891. On the 25th day of February, 1891, plaintiff instituted proceedings supplemental to execution against the defendant. Such proceedings continued until April 10, 1891, to which time the same had been adjourned. The defendant appeared on that day before the court, and while he was in sucli attendance the plaintiff issued to the sheriff an execution against his person, and, after he had left the court, and gone to his attorney’s office, on his way home, he was taken into custody. The defendant thereupon moved that the execution against his person be superseded, vacated, and set aside, and himself discharged from custody upon the following grounds: (1) That the plaintiff had neglected to issue said body execution within ten days after the return of the execution against the defendant’s property, or within three months after the entry of the judgment. (2) That the said execution against the person had been issued while proceedings against the defendant’s property were pending, and before same had terminated. (3) That the defendant had been arrested while returning to his home from attendance upon this court pur suant to its lawful mandate in a case where his attendance could have been compelled, and while he was privileged from arrest. The court granted' this motion upon all the grounds moved upon, on condition that the defendant, stipulated to waive any claim for damages by reason of his arrest, and from that.part of the order imposing this condition this appeal is taken. It is undoubtedly true that the defendant was not absolutely entitled to have the execution set aside because not issued within ten days after the return of execution against his property or within three months after the entry of judgment. If reasonable excuse be given, the application may be denied; but he was ab