
    De Silver v. Holden.
    
      (New York Superior Court, Special Term,
    
    
      Filed, October 30, 1886.)
    
    Execution against the febson—Section 573, Code Crv. Pbo.
    A judgment was -entered against a defendant on or.about January 18, 1884, and affirmed upon appeal in April, 1884; executions against the property were issued May 31, 1886, and returned unsatisfied July 30, 1886; thereupon executions against the defendant’s person were issued July 38, 1886, and returned endorsed. “ Not found,” September 37, 1886; alias executions against the person were issued October 3, 1886. Held, that as prior to the amendment of section 573 of the Code of Civ. Pro., passed June 15, 1886, the plaintiff was not under a duty to enter a judgment except the defendant was in actual custody, which was not the case, hence he was not chargeable with neglect within the meaning of the section, although the executions were not issued within three months after "the entry of judgment.
   Freedman, J.

This is a motion to set aside two executions against defendant’s person. Of grounds assigned, only one requires serious consideration. The others are, under the circumstances, shown clearly -untenable. The ground which does present a grave question is, that the said executions were not issued within three months after

the entry of the respective judgments upon which they are based. Prior to the amendment of section 572 of the Code of Civil Procedure, passed June 15, 1886, the ground stated was available only to a defendant in actual custody, which is not the case of the present defendant.

The amendment of 1886 abolishes the requirement of actual custody and, except in a case where an order of arrest can be granted only by the court, enables a defendant in any event to make the motion upon proof that the plaintiff neglected to issue the execution within three months after the entry of the judgment.

In the case at bar, the first judgment was entered upon a demurrer to the complaint on or about January 18, 1884, for the sum of $2,643.98. The defendant appealed from said judgment to the general term, which affirmed the same. Judgment of affirmance was entered in April, 1884, with $66.10 costs. Upon these judgments executions against defendant’s property were issued May 21, 1886, and returned unsatisfied July 20, 1886. Thereupon executions against defendant’s person were issued July 28, 1886, and the same having been returned September 27, 1886, with the endorsement “Not found,” alias executions against the person were issued October 2, 1886. Defendant’s motion is to set aside the alias executions.

Upon these facts, it is clear that the plaintiff did not issue the executions against defendant’s person within three months after the entry of the judgments. But is he chargeable with any neglect ? A neglect in such a case consists of the omission to perform the duty of entering the judgment within the proper time. But prior to the amendment of 1886, the plaintiff was under no duty to enter judgment unless the defendant was in actual custody, which was not the case. Moreover, as matter of fact, the plaintiff did issue executions against defendant’s person, in less than two months after the amendment took effect.

No neglect within the meaning of the law has therefore been established, and the defendant, upon whom the burden of proof in this respect rests, has not brought himself within the statute. Moreover, this failure to establish neglect constitutes also a sufficient reason in another respect why the defendant’s application should be denied. Section 572, as amended in 1886, is not peremptory. It authorizes in express terms a denial of the application whenever reasonable cause is shown why the application should not be granted. The facts disclosed and the absence of neglect do constitute such reasonable cause.

This disposition of the motion renders it unnecessary to determine whether cases pending at the time the amendment of 1886 went into effect do or do not remain wholly unaffected by said amendment.

The motion must be denied, with $10 costs.  