O'Brien v. Kelly

Per Curiam:

The plaintiff, having a judgment against the defendant, obtained an order allowing an execution to issue under section 1391' of the Code of Civil Procedure against the salary of the defendant.' Upon motion of the defendant- this order allowing an execution to issue was vacated, and from that order the plaintiff appealed. On October 22, 1902, the plaintiff obtained a second order allowing an execution to issue to tide sheriff under the same section of the Code, which execution is now in force, and the sheriff is acting under it. The defendant now moves to dismiss the appeal from the order entered on the 28th of May, 1909, on the ground that the plaintiff waived her right to appeal by obtaining the second order under which execution has actually issued and is now in force.

Section 1391 of the Code of Civil Procedure provides: “ Where no execution issued as hereafter provided for in this section is unsatisfied cmd outstanding against said judgment debtor,” an execution under the section may issue as therein provided. There can be but one execution under this section, and this court would not be justified in reversing the order of the Special Term so long as an execution in favor of the plaintiff is outstanding. It is quite apparent, therefore, that the appeal will be unavailing, and we think it clear that by obtaining the subsequent order allowing an execution to issue she waived her right to appeal from the prior order vacating the prior execution.

It follows that the appeal must be dismissed, but, under the circumstances, without costs.

Present — Ingraham, McLaughlin, Clarke, Houghton and Scott, JJ.

Appeal dismissed, without costs.