This case comes within the decision in Segelken v. Meyer (94 N.Y. 473). The action was not one of those specified in section 549 of the Code of Civil Procedure, but was excontractu for neglecting and refusing to pay a debt due to the plaintiff out of the proceeds of property which had been placed in the hands of the defendant to be by him sold for the purpose of paying certain debts, among which was that due the plaintiff. No order of arrest having been issued in the action, the judgment therein did not authorize an execution against the person. The execution against the person of the defendant was, therefore, unlawfully issued, and the defendant had a legal right to a reversal of the order of the Special Term, which denied his motion that it be set aside and he be released from the custody of the sheriff.
The General Term consequently erred in attaching to its order of reversal the condition that the defendant should stipulate not to sue, etc. (Matter of Bradner, 87 N.Y. 171; Crotty v.Kimball, N.Y. Gen. Term, Oct. 1885.)
It is claimed that, as the order of reversal awards costs to the defendant, and such award of costs was in the discretion of the court, it had the right to attach the condition in question to *Page 4 its order. If the condition had been attached to the award of costs simply, it could stand, but it is not so limited. It is attached to the whole order, and the consequence is, that if the defendant declined to give the stipulation, the erroneous order of the Special Term and the execution against his person would remain in force. The plaintiff claims that the defendant should have appealed from the whole order. This, it is obvious, he could not be required to do, for a reversal of the whole order would have left the order of the Special Term, and the execution, in full force.
It does not appear that the defendant has collected or demanded the costs awarded to him by the order of reversal, and the case, therefore, does not come within that class of cases which hold that a party who has availed himself of provisions in his favor, contained in an order, has thereby waived the right to appeal from other provisions therein which are adverse to him.
The case is distinguishable from that of Bartlett v.Stinton (L.R., 1 C.P. 483). In that case the moving party, by his notice of motion, asked the court for the exercise of its discretionary power in his favor, and his motion was granted on terms. In the present case the decision of the Special Term was against him. He did not, by his appeal to the General Term, ask for the exercise of any discretion, nor submit himself to its discretion to impose terms upon him. His appeal was based upon a purely legal point, and the effect of the appeal was to demand, as matter of right, that the erroneous order appealed from be reversed. Whatever the General Term added to that reversal was of its own volition, and the defendant had the right to appeal from that part of the order which prejudiced him, so long, at all events, as he had not undertaken to enforce any other part of the order which rested in the discretion of the General Term.
The order of the General Term should be modified by striking out the condition specified in the notice of appeal, with costs.
All concur.
Ordered accordingly. *Page 5