Schmidt v. Heitner
The Superior Court of New York City
Appeal from an order vacating and setting aside an execution against the body of the defendant. The facts presented on the hearing of the motion were as follows :— About May 21, 1875, an order of arrest was issued against defendant; defendant was arrested and immediately gave bail, and remained and was released on said bail ever since. On October 24, 1877, judgment was recovered and entered against defendant.
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Appeal from an order vacating and setting aside an execution against the body of the defendant. The facts presented on the hearing of the motion were as follows :— About May 21, 1875, an order of arrest was issued against defendant; defendant was arrested and immediately gave bail, and remained and was released on said bail ever since. On October 24, 1877, judgment was recovered and entered against defendant. Execution against the property of defendant was returned January 9, 1878, unsatisfied. Execution against the person of defendant was issued October 21, 1878. The court, by an order,…
1Opinion of the Court
By the Court.—Freedman, J.
I do not see how the order appealed from can be sustained. Section 572 of the Code of Civil Procedure applies only to defendants in actual custody. A defendant released on bail is not in actual custody, within the true intent and meaning of the term, as used in the section referred to.
Section 288 of the former Code contained a similar provision, and, in Bostwick v. Goetzel (57 N. Y. 582, affirming 34 N. Y. Super. Ct. 23), was held inapplicable to the case of a defendant at large on bail. Coman v. Storm (2 How. Pr. 84) is not in point. In that case the defendant,…
2Cases cited1 opinion
- Bostwick v. . GoetzelNew York Court of Appeals · 1874