Wooster v. Wuterich
The Superior Court of New York City
Motion by defendant to set aside judgment and execution. Emma C.. Wooster, the plaintiff, obtained a judgment by default against Christian Wuterich, the defendant, on September 30, 1869, for $1,334.15. The judgment roll was duly filed in the office of the clerk of New York county on that day, but no execution was issued by the attorney who obtained the judgment.
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Motion by defendant to set aside judgment and execution. Emma C.. Wooster, the plaintiff, obtained a judgment by default against Christian Wuterich, the defendant, on September 30, 1869, for $1,334.15. The judgment roll was duly filed in the office of the clerk of New York county on that day, but no execution was issued by the attorney who obtained the judgment. In October, 1876, the plaintiff applied to another attorney to collect the amount of the judgment, who issued an execution to the sheriff, supposing one had been before issued and returned nulla bona. The defendant, immediately after…
1Opinion of the CourtSpeir, J.
In this case the plaintiff obtained a judgment against the defendant, but execution was not issued until after five years after the entry of the judgment. It appears that the attorney who issued the execution was under the impression that an execution had been issued and returned “no goods found.” Motion is now made to set aside the judgment and execution. The motion to set aside the judgment must be denied on the merits. The issuing of the execution is not void, but only voidable in the discretion of the court. The Code (§§ 383 and 384) forbids the issuing of the execution after the lapse of…
2Cited by2 opinions
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