88 A.D. 1 | N.Y. App. Div. | 1903
This is an appeal from an order granting defendant’s motion tc vacate an order of arrest, granted May 1, 1903, and relieving the
The second ground upon which the defendant attacks the order of arrest is under that part of the provision of section 572 of the Codé which relates to a neglect of plaintiff to enter judgment within ten days. That portion of the section material to his contention reads as follows: “ If the plaintiff * * * neglects to enter judgment therein within ten days after if is in his power to do so,
If, as section 551 of the Code provides, and as has been held sru/pra,. an order of arrest may be granted at any time before a judgment,, even after a trial and decision or after a verdict, we do not think that it was intended by the Legislature, in enacting section 572, that the defendant should be relieved immediately from arrest, if such an order was executed upwards of ten days after it was within the power of the plaintiff to enter judgment in the case. For, were such the law, the efficiency of an order of arrest would be practically limited to cases where it is granted and executed before trial. We think that to defeat the defendant’s right of supersedeas the plaintiff, must enter judgment within ten days after it is within his power to do so, counting from either the date of the granting of the order or the day on which it was executed, which wé are not called upon in this case to decide. The plaintiff, in the absence of an order of arrest granted and executed in an action, is under no obligation to enter judgment upon a verdict within any given time, and, in the absence of such order, suffers no penalty by reason of his delay. When this mandate becomes, however, part of the proceedings in an action, then it is imposed upon the plaintiff to proceed with that degree of diligence and fairness toward the defendant which is defined in section 572 of the Code, and then and only then will the plaintiff be required to comply with those provisious at his peril.
Inasmuch as the entire record is silent upon the question whether the plaintiff entered his judgment within ten days after the granting- or execution of the order of arrest, the defendant has failed to make
The order appealed from should, therefore, be reversed, and the motion denied.
Goodrich, P. J., Woodward, ■ Hirschberg and Jerks, JJ., «concurred.
. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
The other cases of this term will be found in volume 87 App. Div.— [Rep.