Bostwick v. Wildey
The Superior Court of New York City
The action was upon an undertaking given upon the arrest of the defendant Wildey. The defendant was arrested on the 2d of July, and undertaking was given on the 10th of August, 1869. Judgment in the action was entered on the 10th of July, 1869, when an execution against the property was issued and returned unsatisfied.
Read the full summary
The action was upon an undertaking given upon the arrest of the defendant Wildey. The defendant was arrested on the 2d of July, and undertaking was given on the 10th of August, 1869. Judgment in the action was entered on the 10th of July, 1869, when an execution against the property was issued and returned unsatisfied. An execution against the person of the defendant was not issued until March 1st, 1870. The court dismissed the complaint, and the plaintiff' excepted., The exception was ordered to be heard at the general term, in the first instance.
1Opinion of the Court
By the court, Monell, J.
At the time of entering judgment in the action, against Wildey, he was in the actual custody of the sheriff, under the order of arrest; and as the execution against his person, was not issued, until more than seven months after the entry of judgment, and after the intervening of several terms of the court, it is Claimed, that an action does not lie against the bail.
The provision of the statute (2 R. S., 556, § 36), is, that where a defendant at the time judgment shall be entered against him, shall be in the custody of the sheriff upon process in the suit, the plaintiff…
2Cited by1 opinion
- Merchants' National Bank v. MosherNew York Supreme Court · 1878