
    James Hedges, App’lt, v. William H. Payne et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 15, 1895.)
    
    Arrest—Execution—Release.
    Section 572 of the Code does not authorize an order relieving the debtor from imprisonment under an execution, where he was arrested under an order of arrest and has procured his discharge by giving an undertaking for the delivery of the chattels sued for.
    Appeal from an order, allowing a supersedeas and relieving the defendant from imprisonment under an order of arrest and execution against his person.
    
      Henry E. Howland, for app’lt; Arthur H. Smith, for resp’ts.
   Van Brunt, P. J.

This action was begun in the year 1888, to recover possession of certain personal property, or the value thereof, in case delivery could not be had. On the 12th of January, 1888, an order of arrest was issued against the defendant Payne, and he was arrested thereunder. Subsequently Payne gave an undertaking under subdivision two of section 575 of the Oode of Civil Procedure, the defendant having been released by the sheriff previously under an improper undertaking. The defendant Payne having answered, the issues thus raised were tried, and a verdict rendered for the plaintiff, on the 10th of April, 1891, and on the 8th of May', 1891, final judgment was entered in favor of the plaintiff against the defendant. On. the 6th of J une, 1891, the defendant Payne appealed to the general term. Judgment of affirmance was entered in March, 1892. The defendant gave no undertaking upon this appeal. On March 30, 1892, execution against the specific property was issued, with the alter,native directions required by section 1731 of the Code of Civil Procedure. This execution was returned unsatisfied April 29, 1892. On June 30, 1892, an execution against the person of the defendant Payne was issued, and returned, ‘‘ Not found,” August 27,1892, and kept alive by other executions until May 3, 1893. On the 16th day of November, 1894, the defendant Payne obtained an order to show cause why he should not be relieved from imprisonment under the order of arrest above mentioned, or any execution against him, issued or to be issued. This motion was granted, and from the order granting the same this appeal is taken.

The motion was made under section 572 of the Code of Civil Procedure, which is as follows :

“ Except in a case where an order of arrest can be granted only by the court if the plaintiff unreasonably delays the trial of the action, or neglects to enter judgment therein within 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 executions against the property, and in- any event neglects to issue the same within three months after the entry of the 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 should not be arrested upon an execution issued upon the judgment in the action.”

It would seem that this section has no application to executions, except in respect to such as may be issued in cases where a defendant had been discharged pursuant to this section. It was intended to relieve from arrest under orders of arrest where the diligence required by the statute was not used by the plaintiff in charging the defendant by execution. The relief to be granted seems to show that this must be the interpretation of the section. If the defendant has already been arrested, he must be discharged from arrest; if not, he is to be relieved from imprisonment by virtue of the order of arrest. The word “ mandate” is used (elegance of language seemingly being considered of more importance by the codifiers than precision of expression), but it is evident that the mandate referred to is the order of arrest mentioned in the beginning of the section. The defendant in this action had been arrested, and consequently the second provision did not apply. Neither can the first apply, because the defendant had already been discharged from arrest by the giving of the undertaking to deliver the chattels sued for, or pay the sum recovered. The sureties under such an undertaking have no power to surrender their principal (section 591), and the defendant was not even constructively in custody, as he would have been had the bail such power. There was no situation, therefore, to which section 572 could apply. The court could not discharge the defendant from custody when his discharge had already taken place, and the defendant was not in custody. Neither could the other relief provided for by the section be granted, because the defendant had been imprisoned. The order appealed from must be reversed, with $10 costs and disbursements, and motion denied, with $10 costs. All concur.  