
    William Slawson, Respondent, v. John D. McCoach, as Sheriff of the County of Orange, Appellant.
   Order and judgment reversed upon the law, with costs, and complaint dismissed, with costs. The vacatur of the body execution in the order of July 23, 1929, was absolute and unconditional. The terms with respect to the opening of the default had no relation to that vacatur. The order contemplated the taxation of costs by the plaintiff upon notice to the defendant. To hold that the vacatur of the body execution was not absolute would enable the plaintiff, by the expedient of failing to tax the costs, to keep the prisoner in custody by mere failure to tax these costs. A fair construction of the order does not permit such a result. The order contemplated that if the terms upon which the default in pleading was opened were not complied with and the motion to open the default as a consequence stood denied, the right would arise in the plaintiff, at the end of the five-day period specified, to enforce the judgment by body execution or otherwise, and thus plaintiff’s rights in every particular were preserved, subject to their being suspended to the indicated extent during the period involved in the terms imposed as a condition to the opening of defendant’s default in pleading. Lazansky, P. J., Kapper, Carswell, Scudder and Davis, JJ., concur.  