Bostwick v. . Goetzel
New York Court of Appeals
Appeal from order of the General Term of the Superior Court of the city of New York, setting aside an order dismissing plaintiff’s complaint and granting a new trial. This action was brought upon an undertaking given by defendant Wildey, as principal, and defendants Meeks and Goetzel, as sureties, to discharge Wildey from an order of arrest issued in an action by this plaintiff against him. Goetzel alone defended. July 2,1869, Wildey was arrested in the action against him.
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Appeal from order of the General Term of the Superior Court of the city of New York, setting aside an order dismissing plaintiff’s complaint and granting a new trial. This action was brought upon an undertaking given by defendant Wildey, as principal, and defendants Meeks and Goetzel, as sureties, to discharge Wildey from an order of arrest issued in an action by this plaintiff against him. Goetzel alone defended. July 2,1869, Wildey was arrested in the action against him. August 10,1869, the undertaking sued on was given, and Wildey was released from arrest. July 10, 1869, judgment was…
1Opinion of the Court
Earl, C.
The appellant claims that the undertaking was irregular and void because, under section 186 of the Code, Wildey could give bail for his discharge from arrest only before execution, while here execution against his property had been issued before the undertaking was given. I am of opinion that the execution mentioned in section 186 is one against the person. While the sheriff holds such an execution in his, hands, it would be quite idle for him to take bail from the defendant that he should at all times render himself amenable to the execution, which it was his duty at once to enforce.…
2Cases cited5 opinions
- Haggart v. . MorganNew York Court of Appeals · 1851
- Coleman v. BeanNew York Court of Appeals · 1866
- Renaudet v. CrockenNew York Supreme Court · 1803
- Wells v. JonesNew York Supreme Court · 1855
- Lippman v. PetersbergerNew York Court of Common Pleas · 1859
3Cited by6 opinions
- McDonell v. Wayne Circuit JudgeMichigan Supreme Court · 1923
- Merchants' National Bank v. MosherNew York Supreme Court · 1878
- Schmidt v. HeitnerThe Superior Court of New York City · 1879
- Watt v. HealyNew York Supreme Court · 1880
- Wright v. GrantNew York Supreme Court · 1887
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