
    ROBERT A. MILLS, Respondent, v. HENRY RODEWALD, Appellant.
    
      Order of wrrest — motion to meate— denied, with leame to renew — renewal of motion aftrn' judgment.
    
    November 20, 1869, an order for tbe arrest of tbe defendant was granted in this action, and on December 28,1869, a motion to vacate the same was denied with leave to renew the motion on showing the amount secured by an attachment previously issued in the action. In 1872 the action was tried and judgment recovered by the plaintiff. In February, 1877, this motion was made to vacate the order of arrest.
    
      Held, that it was properly denied as the leave to renew was only given for a special purpose, and the right to renew was terminated by the entry of the judgment.
    Appeal by defendant from an order denying a motion to vacate an order of arrest.
    
      George O. Genet, for tbe appellant.
    
      Thos. Bracken, for the respondent.
   Davis, P. J. :

Tbe order of arrest in this case was made November 20th, 1869. Tbe motion to vacate tbe order was made upon tbe original papers and affidavits in December following, and denied on tbe twenty-eighth day of that month. By tbe order of denial leave was given to renew tbe motion, on showing tbe amount secured by tbe attachment previously issued.

Tbe judge who beard tbe motion indorsed on tbe papers a memorandum, as follows:

Tbe motion to vacate tbe order of arrest is denied, with leave to renew tbe motion on showing tbe amount secured by tbe attachment. It is oppressive to obtain an order of arrest after an attachment has been levied to secure tbe claim, and both remedies should not be resorted to.” ' ,.

It thus appears that tbe leave to renew was given , for the purpose of enabling tbe defendant to show that tbe claim upon which tbe action is brought was wholly or in part secured by the attachment previously levied, and doubtless with the intention of enabling him to move to discharge the order of arrest, on the ground that the plaintiff had secured his claim, or so much of it that the amount for which he was held to bail should be reduced. There was no renewal of the motion for any such, or any other purpose, prior to the judgment. In 1872 the action was tried and judgment given in favor of the plaintiff; and in February, 1877, some five years after the entry of judgment in the action, a motion to vacate the order of arrest was renewed, and denied. In denying the same the judge holding the Special Term stated the following grounds :

“ First. The leave given to renew the motion was not intended to enable the defendant to renew it after the entry of judgment, nor after the lapse of so many years.
“ Second. Assuming the motion to be properly before the court, it should, in my opinion, be denied on its merits.”

We think the first of these objections was sufficient to justify the denial of the motion. Section 204 of the Code provides that a defendant arrested may, at any time before judgment, apply on motion to vacate the order of arrest. TJuder this section it has been frequently held that the application must be made before judgment. (Barker v. Wheeler, 23 How., 193; Roberts v. Carter 17 id., 479; Union Bank v. Mott, 9 Abbott, 106, 107.) The application in this action was made before judgment and was denied; but leave to renew was given for a special purpose, to wit, to enable the defendant to show that the claim, or some portion of it, was secured by attachment, on the ground that if secured in whole or in part, the order of arrest might be vacated or the amount of bail reduced. Several years elapsed before judgment was obtained, during which a motion might, for all the purposes for which the leave to renew was given, have been easily made. The defendant, however, has delayed until several years after the judgment was entered, and we think it must be held that his right to renew the motion was completely terminated by the judgment.

We refrain, therefore, from examining the merits of the motion, as we think this objection ought to be fatal; and our examination of the question upon the merits might be drawn into a precedent for similar experiments. .

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

Brady, J., concurred; Ingalls, J., taking ho part.

Order affirmed, with ten dollars costs and disbursements.  