
    SUPREME COURT,
    The Union Bank in the City of New-York agt. Jacob H. Mott and Garret S. Mott.
    The 183d section of the Code provides that the order of arrest “ may be made to accompany the summons, or at any time before judgment,”
    
    
      Meld, that the judgment here mentioned must be a final and absolute judgment, not a conditional judgment. That is, where a judgment entered by default against a defendant is, on motion, opened on terms, and the defendant allowed to come in and defend, the judgment in the meantime to stand as security, it is not such a judgment as prevents the defendant’s arrest on the original causo of action.
    
      New - York Special Term,
    
    
      December, 1858.
    Motion to vacate order of arrest.
    Judgment was regularly entered in this action against the defendant G-arret S. Mott, upon his failure to- answer the complaint for $198,000.87 damages, besides costs, on the 5th day of November, which judgment authorized the plaintiff to issue execution for its enforcement, as well against the body of such defendant as against his property. An execution against his property was issued upon the judgment to the sheriff of this city and county; but afterwards on the 11th day of November, such defendant obtained leave of the court to serve an answer to the plaintiff’s complaint within ten days, and to proceed with his defence in the action upon payment to the plaintiff’s attorney of $22.50 costs, and also the fees of the sheriff upon the execution. The court then further ordered that the judgment should stand as security for the alleged in-, debtedness of the defendant Garret S. Mott, to the plaintiff. He has put in an answer to the complaint, and the action is now at issue thereon.
    An order for the arrest of both defendants was granted prior to the entry .of the judgment; but Garret S. Mott was not arrested on it. After he obtained leave to answer the complaint and defend the action, an order for his arrest was granted by one of the justices of this court, bearing date the 8th day of December, instant; and he has been arrested on it, and is in prison, by reason of his failure to procure bail in the sum of $142,000. His counsel now moves to vacate such order, on the ground that the affidavits were insufficient to authorize the same, and that no order for the arrest of such defendant could be made after the entry of the judgment against him.
    Samuel A. Foot, for plaintiffs.
    
    D. Dudley Field, for defendant.
    
   Balcom, Justice.

I think the affidavits contained facts sufficient to authorize the order. (See 6 Abbott, 315.) The important question to be determined is, whether the judgment estopped the plaintiff from procuring such order ? The language of the Code is, that the order of arrest may be made to accompany the summons, or at any time before judgment.” (Code, § 183.)

I am of the opinion a judgment in an action must be final to estop the plaintiffs from procuring an order for the arrest of the defendant, in other words, it must be absolute and not conditional. The j udgment in this action was final when entered, but its character was changed, upon the motion of the very defendant who now sets it up as an estoppel, from that of a final judgment to a mere security for his alleged indebtedness to the plaintiff; and should he be beaten upon the issues formed by Ms answer, no execution could be issued on it, unless the plaintiff should fail to collect by due course of law the judgment that would be entered on the finding of the jury upon those issues, and not then without leave of the court.

Garret S. Mott is defending the action as fully and as perfectly as he could have defended it if no judgment had been entered therein. And I think the judgment against him should be deemed vacated or set aside, so far as it affected the right to obtain the order of arrest which was granted subsequent to the time its character was changed.

If Garret S. Mott should now give bail, the undertaking of his sureties would not be conditioned that he should render himself amenable to such process as may be issued to enforce that judgment, but to such only as may be issued to enforce the judgment therein if one should be recovered by the plaintiff. (See Code, § 187.) In other words, his sureties would not be bound to surrender him upon any execution that may be issued on the judgment already entered, or upon any order that may be granted for its enforcement.

My conclusion is that the motion to vacate the order of the 8th of December, on which Garret S. Mott has been arrested, should be denied with $10 costs.

. Decision accordingly.  