
    FIRST NATIONAL BANK, USE OF STANTON, vs. EDWARD ABNER.
    At law.
    No. 6357.
    I. A plea that the defendant is a petitioner in bankruptcy does not, in itself, operate as a stay of proceedings.
    II. A judgment in such case was recorded by the plaintiff April 6, 1871, and an attachment issued thereon the 2d day of March, 1874. It was held that a motion to discharge such attachment on the ground that defendant had been adjudged a bankrupt came too late, the defendant having neglected to obtain a stay of proceedings, and having waited more than three years after the entry of the judgment.
    STATEMENT OP THE CASE.
    The plaintiff obtained judgment on the 6th day of April, 1871, for the amount of two notes described in the declaration. The record shows that the defendant filed three pleas, one of which was to the effect that he was a petitioner in bankruptcy, and that he had applied to be discharged on the equity side of this court. There was no replication to this plea, nor stay of proceedings ordered by the court.
    On the 2d day of March, 1871, a writ of attachment was issued under the judgment, by virtue of which the credits of the defendant in the hands of O. E. Prentiss were attached, amounting to $75.67.
    On the 11th day of April, 1871, the defendant made this motion to discharge the attachment, on the ground that it was laid in disregard of a stay of proceedings.
    The motion was overruled, and the defendant appeals to the general term.
    
      Enoch Totten for plaintiff.
    
      Fr. Schmidt for defendant.
   Cartter, Ch. J.,

delivered the opinion of the court:

We all think the motion is too late. It is more than three years since the entry of the judgment, and the defendant neglected at the proper time to procure a stay of proceedings.

If the plea in bankruptcy operated as a stay of proceedings and was not waived by the defendant, the judgment would be clearly erroneous. But the remedy for correcting that error would be by appeal or writ of error, and not, after waiting over three years, ask us to practically set the judgment aside on a motion.

Judgment affirmed.  