
    SUPREME COURT.
    Joseph Pelo agt. John Clukey.
    A Motion to vacate an order of arrest may now be made after judgment, if made within twenty cays after the service of the order.
    
      St. Lawrence County Special Term, November, 1868.
    This was a motion to vacate an order of arrest.
    • The facts so far as material to this motion, are as follows: An order of arrest was obtained in February, 1868, and the defendant was arrested and held to bail in March thereafter. A defense was interposed to the action, but no judgment has yet been entered. In September notice of this motion was given, and the same was. continued by stipulation to the present.
    Geo. Morris, for the motion.
    
    D. O’Brien, in opposition.
    
   James, J.

It was conceded on the argument that the affidavits were sufficient to require the order of arrest to be vacated, if the motion for that purpose was made in time. The defendant relied upon section 204 of the Code, which enacts that ‘‘ a defendant arrested may, at any time before judgment, apply on motion, to vacate the order of arrest, or to reduce the amount of bail.”

The plaintiff claimed that the amendment to section 183 of the Code, passed in 1862, was inconsistent with section 204, and the latter being the older statute was repealed by implication; that now a motion to vacate an order of arrest must be made within twenty days after service of the order; which was not done in this case.

The amendment reads as follows: “ But said order of arrest shall be of no avail, and shall be vacated, or set aside, on motion, unless the same is served upon the defendant, as provided by law, before the docketing of any judgment in the action ; and the defendant shall have tiventy days, after the service of the order of arrest, in which to answer the complaint in the action, and to move to vacate the order of arrest, or to reduce the amount of bail.” In support of bis view the plaintiff cited 1st Vol. New York Practice, 257. Section 183, as amended, and section 204 are not at all inconsistent with each other. They may be so construed as to harmonize and correctly effectuate the purposes of the amendment. The note to 1st N. Y. Practice, 257, is a proper exposition of the two sections as amended. By section 204 a defendant may, at any time before judgment move to vacate an order of arrest; the amendment was intended to enlarge the time in which a motion to vacate might be made, when twenty days did not elapse between the service of the order and the entry of judgment, and such is the fair, and legitimate construction of the amendment. A motion to vacate an order of arrest may now be made after judgment, if made within twenty days after service of the order.

Motion to vacate granted.  