
    POTTS v. DAVIDSON.
    
      N. Y. Supreme Court, First District, Special Term ;
    December, 1884.
    Escape.—Stay op proceedings as against sheripp.
    The stay under § 170 of Code Civ. Pro.—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.
    
    Motion for stay.
    
      James Potts sued Alexander V. Davidson, as sheriff, &c., for an escape, and recovered judgment.
    Defendant now moved to stay the plaintiff on his' judgment until defendant could collect from the sureties on the undertaking given by the escaped prisoner.
    
      W. G. Peckham, for plaintiff, objected that defendant had not proceeded with due diligence.
    
      E. J. Cramer and W. Bourke Cockran, for defendant, claimed that the stay had always been granted as of course.
    
      
       The section in question is as follows:
      “ If the person entitled to an assignment of a bond for the jail liberties, in lieu of taking the same, brings an action against the sheriff for the escape, the court may, except where the escape was made with the sheriff’s assent, stay proceedings upon a judgment recovered against the sheriff, with such limitations and upon such terms as it deems just, until he has had a reasonable time to prosecute the bond, and collect a judgment recovered thereon.”
    
    
      
       In Davidson v. Hertzbach (N. Y. Superior Court, Special Term, Feb. 16. 1885), it was held by Ingraham, J., that to entitle the plaintiff to a summary judgment under Code Civ. Pro. § 162— which provides that “in an action brought by a sheriff on a bond for the jail liberties, if it appears to the court, upon a motion made in behalf of the sheriff, that judgment has been rendered against him, for the escape of the prisoner, and that due notice of the pendency of the action against him, was given to the prisoner and his sureties, to enable them to defend the same, the court must order a summary judgment for the plaintiff ; and judgment must be entered accordingly, with costs,”—it must appear that due notice of the pendency of the action against him was given to the prisoner and his sureties, to enable him to defend the same.
      In that case where the sheriff of the city and county of New York sued, the complaint alleged that notice of the pendency of the action against the sheriff for escape, was served on the defendants in the action on the bond, the sureties. There was no allegation that notice was served on the prisoner, and no facts shown that would excuse the want of such service.
      Motion for stay was denied but with leave to renew on additional affidavits.
    
   Barrett, J.

The sheriff should have moved for á 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 within a short time. Certainly, the motion for summary judgment should have been madeparipassu 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.  