Hobbs v. Bashford ( 1887 )

Pratt,, J.

This is an appeal from an order of the city court of Yonkers denying defendant’s motion for Ms release from the custody of the sheriff, and to set aside an execution against his person.

The judgment in this action was obtained m the city-court of Yonkers, on July 18, 1883, and docketed in Westchester county clerk’s office in the month of January, 1886. An execution against the property of the defendant was issued, which was returned wholly unsatisfied on March 20, 1886. Afterwards, on the 22d day of December, 1886— more than ten days after the return of the said execution against the property, and also more than three months after the entry of the judgment, and of the passage of the act amending the Code of Civil Procedure, known as chapter 672 of the Laws of 1886—an execution against the person of the defendant was also issued by plaintiff’s attorney, and the defendant was thereupon taken into custody by the sheriff of Westchester county.

The defendant afterwards made an application to the judge of the city court of Yonkers for his release, and also to set aside the said execution against his person, for the following reasons, viz:

First—That the judgment roll did not show a sufficient cause of action upon which an execution against the person could issue.

Second—That more than three months had elapsed since the entry of the judgment; and,

Third—That more than ten days had elapsed since the return of the execution against his property.

This application was denied by said judge, and on the 17th day of February, 1887, an order to that effect was entered and filed with the clerk of said city court of Yonkers. This appeal is from that order.

The motion was heard upon conflicting affidavits, and we think “reasonable cause was shown why the application should not be granted.” These words just quoted refer to ail that goes before in section 572, and gave the judge of the city court full power to determine, upon the proofs, whether reasonable cause had been shown for refusing to grant the motion.

In any case arising under section 572, the order can be refused where reasonable cause is shown therefor. '

The motion was properly disposed of upon the merits, and should be affirmed, with costs.

Ordered accordingly.

Barnard, P. J., and Dykman, J., concur