
    EMMA S. A. GOVE, Appellant v. CHARLES H. STEWART, Impleaded, etc., Respondent.
    
      Execution against the person, order .to show cause why the same should not be vacated when it fails to specify the irregularity complained of, but such irregularity may be waived by the complainant, as in this case.
    
    The plaintiff waived the right to insist upon the preliminary objection, that she made upon the return of the order to show cause, when the court directed the defendant’s attorney to furnish to plaintiff’s attorney a copy of his brief showing in detail the grounds upon which the motion to vacate was based, and gave the plaintiff’s attorney three days within which to prepare and submit such affidavit and brief as he desired; and within the time plaintiff’s attorney did submit an affidavit and brief.
    
      Held, that, under these circumstances, a new notice of motion or order to show cause was not necessary, and the plaintiff waived her preliminary objection to the irregularity of the moving papers.
    As to the merits, it appeared on the hearing of the motion, that the case was one of great hardship to the defendant; the negligent act complained of was the act of one Sharp, a co-partner of defendant, in the business of dentistry, who was not served with the summons in the action, the defendant Stewart alone contesting plaintiff’s claim. The defendant having failed to issue an execution against the person of defendant Stewart within ten days after the return of execution against property, as required by § 572 of the Code (in fact, until more than 26 days had elapsed), the comt was bound to grant the application to vacate and set aside the execution against the person, unless reasonable cause was shown why the application should not be granted. Upon this point the case presented a question of fact upon which both parties submitted affidavits, which were, to some extent, conflicting.
    
      Held, that, upon the whole case, as presented, it cannot be held that the learned judge, at special term, committed a legal error in the determination of the fact against the plaintiff.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.
    
      Decided January 11, 1892.
    Appeal from an order of the special term vacating and setting aside the execution issued by plaintiff against the person of the defendant.
    
      James M. Hunt and William R. Wilder, attorneys and of counsel, for appellant.
    
      Butler, Stillman & Hubbard, attorneys, and Edward Kent of counsel, for respondent.
   By the Court.—Freedman, P. J.

It may be assumed that, within the decisions of Montrait v. Hutchins, 49 How., 105, and Garner v. Mangam, 46 N. Y. Superior Ct. R., 365, the order obtained by the defendant requiring the plaintiff to show cause why the execution issued by the plaintiff against the person of the defendant should not be vacated and set aside, was irregular in not specifying the irregularity complained of, to wit, that said execution had been issued more than ten days after the return of the execution against the property of said defendant.

But I think the plaintiff waived the right to insist upon the objection. True, she raised the point by preliminary objection upon the return of the order to sbow cause, but the court thereupon instructed the attorney for the defendant to furnish to the attorney for the plaintiff a copy of his brief showing in detail the grounds upon which the motion to vacate was based, and gave to plaintiff’s attorney three days within which to prepare and submit such affidavit and brief as he might desire, and plaintiff’s attorney within the time specified did submit an affidavit and brief. Under these circumstances a new notice of motion or order to show cause was not necessary, and the plaintiff waived her preliminary objection to the irregularity of the moving papers.

As to the merits, it appeared on the motion that the case was one of great hardship to the defendant. The action was brought against the defendant and one Sharp as copartners engaged in the profession of dentistry, and was founded upon a negligent act done by Sharp, and which caused a personal injury to the plaintiff. The defendant Stewart alone was served and contested plaintiff’s claim. The plaintiff having recovered judgment and having failed to issue execution against the person of the defendant Stewart within ten days after the return of the execution against th'e property as required by § 572 of the Code, and in fact more than 26 days having elapsed, and the plaintiff’s right to issue execution against the person depending solely upon the nature of the action, the court was bound to grant the application to vacate and set aside the execution against the person, unless reasonable cause was shown by the plaintiff why the application should not be granted. Upon this point the case presented a question of fact as to which both parties submitted affidavits. To a considerable extent the affidavits were conflicting. Upon the whole case it cannot be held that the learned judge committed a legal error in the determination of the fact.

Having reached that conclusion it is not necessary to consider the questions relating to the regularity of the judgment and execution.

The order should be affirmed, with ten dollars costs and disbursements.

McAdam and Gildersleeve, JJ., concurred.  