Knight v. Vanderbilt , 45 N.Y. St. Rep. 759 ( 1892 )

Per Curiam.

Section 572 of the Code of Civil Procedure, under which this-application is made, provides that a defendant arrested in a civil action, if the-plaintiff unreasonably delays the trial of the action, or neglects to enter judgment therein within 10 days after it is in his power to do so, must upon his application be discharged from custody, if he has already been taken under the mandate against him, or, if he has not yet been imprisoned, that he be relieved from imprisonment ¿y virtue of such mandate by the court in which the action was commenced, unless reasonable cause is shown why the application should not be granted. The only application mentioned in the section is the application made by the defendant, upon notice to the plaintiff, either to be discharged from custody if he has already been taken under a mandate against him in such action, or, if he has not yet been imprisoned, to be relieved from imprisonment by virtue of such mandate; and the provision that the court should grant the order unless reasonable cause is shown applies to this application, whether made to discharge him from arrest, if in custody, or to relieve him from arrest if not in custody. We think, therefore, that it was the duty of the court below to consider whether reasonable cause was shown why the defendant’s application should not be granted, and we concur in the conclusion that in this case reasonable cause was shown, and that the application was properly denied. The order should be affirmed, with $10 costs and disbursements. All concur.