
    LONGUEMARE v. NICHOLS.
    
      N. Y. City Court, Special Term,
    
    July, 1889.
    1. Supersedeas.] The granting of a supersedeas under section 572 of the Code of Civil Procedure, where the judgment creditor has neglected to issue execution against the body of the judgment debtor within the times therein prescribed, is within the discretion of the court.
    
    2. Applicant need not be in actual custody.] Since the amendment of 1886 to section 572 of the Code of Civil Procedure, a judgment-debtor can apply for supersedeas under this section, although not in actual custody.
    3. When plaintiff cannot apply for supersedeas.] A plaintiff against whom an execution is issued for costs in an action in tort, cannot apply for a supersedeas under section 572 of the Code of Civil Procedure. That section relates only to defendants held in execution.
    
    
      Motion for the issue of a supersedeas and for a perpetual stay of execution against the person of plaintiff.
    The facts appear in the opinion of the court.
    
      George Bell, for the motion.
    
      H. S. Snow, opposed.
    
      
       See Segelke v. Finan, 22 Abb. N. C. 458, where the execution against the person vras vacated, having been issued more than ten days after the return unsatisfied, of an execution against the property and more than three months after the entry of judgment, no reasonable cause for a denial having been shown.
    
    
      
       Code of Civ. Pro. § 572, as amended by L. 1886, c. 672, is as follows :
      “Except in a case where an order of arrest can be granted only by the court if the plaintiff unreasonably delay the trial of the action, or neglects to enter judgment therein xvithin ten days after it is in. his power" to do so, or neglects to issue execution against the person of the defendant within ten days after the return of the execution against the property, and in any event, neglects to issue the same within three months after the entry of judgment, or whenever it shall appear to the satisfaction of the court, that the plaintiff in an action, or a judgment creditor in a judgment, delays the enforcement of his remedies therein by collusion, or for the purpose of allowing the debtor to remain in prison under the mandate in any other action, before the issuing of the mandate in favor of such creditor, so as to produce a continued and extended imprisonment by virtue of the separate mandates in the different actions, the defendant must, upon his application, made upon notice to the plaintiff, be discharged from custody, if he has already been taken under the mandate against him in such action ; or if he has not yet been imprisoned therein, be relieved from imprisonment by virtue of such mandate, by the court in which the action was commenced, unless reasonable cause is shown why the application should not be granted. A defendant discharged as prescribed in this section shall not be arrested upon an execution issued upon the judgment in the action.”
      It should not be overlooked that if the judgment is against a plaintiff on a counterclaim, section 720 seems to authorize treating the plaintiff as if he were a defendant.
      And upon general principles, even without statutory provisions, a defendant interposing a counterclaim may be regarded as to that extent a plaintiff, and conversely a plaintiff against whom a counterclaim is interposed, may be regarded as to that extent a defendant.
    
   Holme, J.

This is a motion for the issue of a supersedeas and for an order perpetually staying the issue or enforcement of an execution against the person of plaintiff in this action. The ground of the motion is that an execution against the body of plaintiff, against whom a judgment for costs in an action of tort was.recovered by defendant, was not issued within ten days after the return, unsatisfied, of an execution against plaintiff’s property. The defendant resists the motion on various grounds, admits that the execution was not issued within the ten days, but seeks to excuse his delay by various reasons—among others by the engagements of his attorney, which last reason is of no avail (Kelly v. Brownlow, 54 Super. Ct. [J. & S.] 129), and claims that the granting or denial of the motion is, under section 572 of the Code of Civil Procedure, discretionary.

The objection of the defendant that plaintiff cannot make the motion because he is not in actual custody is, since the amendment of section 572 in the year 1886, without merit, as it is no longer required that the party applying for the supersedeas must be in actual custody (De Silva v. Holden, 11 Civ. Pro. Rep. 404; s. c., 54 Super. Ct. [J. & S.] 1 ; Gellar v. Baer, 12 Civ. Pro. Rep. 433; Havemeyer Sugar Refining Co. v. Taussig, 44 Hun, 475).

It has been held in numerous cases that the requirements of section 572, Code Civil Procedure, as amended in 1886, requiring the discharge of a judgment debtor, are not peremptory", but that they authorize a denial of the application for a supersedeas whenever reasonable cause is shown why such application should not be granted (De Silva v. Holden, supra; Hobbs v. Bashford, 10 N. Y. State Rep. 389; Kelly v. Brownlow, 54 Super. Ct. [J. & S.] 129; People ex rel. Crane v. Grant, 13 Civ. Pro. Pep. 200, 209).

The test is : Has the judgment creditor been vigilant % If he has, the court has discretion to deny the application for a supersedeas.

In my opinion, in the present case'no neglect has been shown by the judgment creditor which would entitle the plaintiff to the relief asked for.

In addition to this, there is a ground not touched upon by either party upon the motion which seems to me to be fatal to the application. An examination of section 572, under which this motion is made, shows that it applies only to cases where the neglect or delay is that of the pla/mtiff. It will be seen that every provision of the section has reference to the discharge of the defendant and does not apply to the case of the plaintiff, against whose body an execution has been issued by defendant.

If this reading of the section is correct, the plaintiff cannot succeed in the present application.

The motion must be denied.  