NOE against CHRISTIE

NOE against CHRISTIE. New York Superior Court; Special Term, January, 1874. Execution.—Jurisdiction oe Superior Citt Courts. After the defendant is in custody of the sheriff, on execution, the plaintiff cannot issue another execution against the person of the defendant on the same judgment, even to another county. Execution issued out of the superior court of the'city of New York will be set aside, on motion, if it appears that defendant was a nonresident of the city, and it does not appear that the action was one within the jurisdiction of the court, as defined in Landers v. Staten Island R. R. Co., 14 Abb. Pr. N. S., 346. An execution against the person of a defendant should be set aside, unless an execution against his property was previously issued to the sheriff of the same county, and returned unsatisfied. Hannah M. Noe, administratrix of Isaac D. Hammond, deceased, recovered two judgments against John S. Christie, on which executions against the person were issued ; and defendant now moved to vacate two of such0 executions, which had been issued to the sheriff of the county of Richmond. The grounds of the motion appear in the opinion. E. J. Pattison, for the motion. H. T. Marston, opposed. [MAJORITY — Freedman, J.] Freedman, J. An execution against property may be issued to the sheriff of any county where the judgment is docketed, and several such executions may be issued at the same time to different counties (Code, § 287). But by the terms of section 288, an execution against the person of the judgment debtor can be issued only to a county within the jurisdiction of the court, after ■the return of an execution against his property unsatisfied, in whole or in part. The defendant being in the custody of the sheriff of the city and county of New York, under and by virtue of an execution issued against his person, upon the judgment, for one thousand eight hundred and ninety-six dollars and thirteen cents, plaintiff had no right to issue subsequently, upon the same judgment, another execution against defendant’s person to the sheriff of Richmond county. The arrest under the first of these executions is a satisfaction of the judgment while the imprisonment continues, and the issuance of the second was in direct violation of the provisions of the Revised Statutes (2 Rev. Stat., 364, §7; 3 Id., 5 ed., 643, § 7). The execution against defendant’s person, issued to the sheriff of Richmond county, upon the judgment for one hundred and twenty-four dollars and eighteen cents, was perhaps properly issued, provided the action is one in which the jurisdiction of this court does not depend upon the personal service of the summons upon the defendant within the territorial limits of the city and county of New York (see Landers v. Staten Island R. R. Co., 14 Abb. Pr. N. S., 346), and provided an execution against the property of the defendant was first duly issued to said sheriff, arid by him returned unsatisfied. Neither of those facts was made to appear, or was claimed to exist, although it did appear that defendant, at the time of his arrest in New York, under the execution first above referred to, was a resident of the county of Richmond. For this reason, the execution for one hundred and twenty-four dollars and eighteen cents must also be set asíde¿ Motion granted, and executions set aside, with ten dollars costs.