Linder v. Feier

BIJUR, J.

The learned judge below wrote a short memorandum to the effect that the motion was granted “for failure to comply with section 572 of the Code of Civil Procedure,” citing Perry v. Kent, 88 Hun, 407,. 34 N. Y. Supp. 843, affirmed 157 N. Y. 710, 53 N. E. 1130. Section 572, however, both in terms and by reason of the context, is plainly applicable only to discharge from an order of arrest, and has no reference to execution against the person. It was so held in Sweet v. Norris, 12 Civ. Proc. R. 175, and that case is cited as authority for reversing an order similar to the one herein appealed from in Perry v. Hughes, 82 Hun, 614, 33 N. Y. Supp. 1133. See, also, People ex rel. Harris v. Gill, 85 App. Div. 192, 83 N. Y. Supp. 135.

The decision in Perry v. Kent has no bearing on the question at issue. It held merely that where an order to vacate an execution had been made at Special Term, although reversed by the General Term in 82 Hun, 614, 33 N. Y. Supp. 1133, supra, the release of the defendant by the sheriff from detention in the jail limits did not render the sureties on defendant’s bond liable as for an escape, because, although the Special Term order was erroneous, it was, nevertheless, an order within the jurisdiction of the court to make, and until its reversal the sheriff was bound to obey it.

Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. All concur.