Bowman v. Bowe

Brady, P. J.: It appears from the record that, on tbe 13tb of April, 1880, an order was granted bolding each of the defendants to bail in the sum of $2,000, and that all the defendants except Bowe were arrested thereunder, and that on the third of May following this action was brought to trial and the complaint dismissed, and thereupon the defendants, other than Bowe, were discharged from custody. The plaintiff, however, appealed to the General Term of this court from the judgment of dismissal and that judgment was reversed. The cause was subsequently retried and resulted in a verdict against all the defendants save Dunn. The plaintiff thereupon applied for a reinstatement of the order of arrest against these judgment debtors. The order to show cause was dated May 4; 1885, and the motion was granted by order entered the nineteenth of May following, which declared that the order of arrest originally granted wa3 reinstated with the same force and effect as it had prior to May 3,1880, on which day the complaint, as we have seen, was dismissed and the sheriff was directed to arrest and hold the defendants as required by •that order. Subsequently, and on the twenty-fifth of May, the plaintiff’s attorney gave notice that he would apply to Justice LaweeNcb on the 26th of May, 1885, for an order that the order be declared •as in full force' against the defendant Bowe as originally granted ; and this was founded upon an affidavit in which he stated that the name of the defendant Bowe appeared to be mutilated, i. e., erased with a pen, which it was alleged was done by some person without ■authority, as the order, when originally granted, contained the name •of the defendant Bowe and a provision for his arrest, and that no •order was ever made authorizing the erasure of the same. The result was an order that the original order of arrest be restored to its condition when granted, so that the name of Thomas Bowe should .appear immediately after the words “ you are required forthwith to .arrest.” From both of these orders the defendant Bowe has taken •an appeal. The question presented upon this appeal is whether the original order of arrest, which was in the nature of original process, can be revived on such an application as was made herein and granted. The defendants arrested were discharged from custody when the complaint was dismissed, and the result of that judgment was [491] undoubtedly to supersede tbe order of arrest, which was swallowed up by the judgment. This rule has been declared in the case of The People ex rel. Roberts v. Bowe (81 N. Y., 43). The court said, in that case: “ Suppose the original judgment had been in favor of the relators, and they had been discharged, could they be retalien upon the same order? Or suppose they had given bail for the jail liberties, the same result might follow.” And further, that no authority had been cited in favor of the doctrine contended for, and it seemed to be more in accordance with the general principles applicable to process to hold that when once dead it was gone forever. But the court added: “We do not mean to intimate that a new order might not be obtained.” It may be noted here that no authority has been cited by the respondent’s counsel to sustain the doctrine contended for in this case. There was no application made here for a new order. The facts which would be necessary to obtain it were not set forth in the affidavit. The application was to show cause why an order should not be reinstated, and all the proceedings were based upon the idea of a revival or resurrection of the original order; and, therefore, it was not an application for a now order founded upon the statement of all the facts necessary for an exposition of the character of the action and of the right of arrest. For these reasons, and on the authority of the case cited, it is thought that the orders appealed from should be reversed, with ten dollars costs and the disbursements as to one appeal only. Daniels, J., concurred. Orders reversed, with ten dollars costs and disbursements of one appeal.