
    SUPREME COURT.
    James Potts agt. Alexander V. Davidson, as sheriff, &c.
    
      Gods of Qiml Procedure, section 170— When stay provided for by this section 'mid not be granted.
    
    The stay under section 170 of the new Code, which stays proceedings against the sheriff until he can collect from the bondsman of an escaped judgment debtor, is discretionary and the court will not grant it where the sheriff has not proceeded with diligence.
    
      Special Term, December, 1884.
    Defendant moved to stay the plaintiff on his judgment for an escape until defendant could collect from the sureties on the undertaking given by one John Flanagan, an escaped prisoner. Plaintiff claimed that defendant had not proceeded with due diligence.
    
      W. Q. Peckham, for plaintiff.
    
      E. J. Cramer & W, Burke Cockran, for defendant.
   Barrett, J.

The sheriff should have moved for a summary judgment against the sureties immediately upon the entry of judgment against himself. Had he done so this motion would probably have been unnecessary, as the amount sued for could have been collected in a short time. Certainly the motion for summary judgment should have been made pari passu with this motion. In its absence there is no evidence of diligence or good faith. The intention of section 170 of the Code was to protect the sheriff while he is doing everything which the law permits promptly and diligently to collect from the sureties. For aught that appears the sheriff has not sued the sureties yet. Under the circumstances he is not entitled to the favor which might otherwise have been accorded to him under section 170. The motion must be denied, with costs, and the stay vacated.  