Opinion
March 25, 1949.
David Friedland and Milton E. Friedland for plaintiff.
Emanuel Marino and Albert J. Marino for Henry J. Pollak, defendant.
On plaintiff's motion for an order to issue execution against the person of defendant Pollak, counsel appeared in opposition before the court at Special Term, and the motion was referred to this court, before which the action had been tried. Through inadvertence, no papers in opposition were submitted on the reference and the motion was granted, but the order to be settled thereon has not been signed.
Upon application of defendant's attorney, both counsel have appeared before this court and have been heard orally as upon a reargument. An opposing affidavit and memoranda of both counsel have been submitted.
Upon reconsideration, it is clear that even though the judgment herein was rendered in an action for fraud and deceit, plaintiff is not entitled to an execution against the person as of right. Section 764 of the Civil Practice Act, as amended by chapter 552 of the Laws of 1940, provides that the issuance of such an execution shall rest in the discretion of the court. The amendment thus changed the law previously pronounced in White v. Denny ( 258 A.D. 144) and other cases cited (see Seventh Annual Report of N.Y. Judicial Council, 1941, p. 20).
Upon the facts adduced at the trial of this action and upon all the circumstances herein, the court is of the opinion that an execution against the person of defendant Pollak should not be issued. The decision of March 10, 1949, is therefore recalled, and the motion is denied, without prejudice, however, to renewal upon proof of additional facts tending to show un-co-operative, obstructive, or other prejudicial conduct on the part of this defendant.