Jackson v. Smith
New York Court of Common Pleas
Appeal from an order setting aside an execution. This action was Drought in the Sixth District Court by William H. Jackson and another against Charles Smith. The plaintiffs had judgment, from which the defendant appealed to this court, and gave the undertaking required by sections 354 and 356 of the Code of Procedure, which was approved by the district justice and filed with the clerk of the Court of Common Pleas.
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Appeal from an order setting aside an execution. This action was Drought in the Sixth District Court by William H. Jackson and another against Charles Smith. The plaintiffs had judgment, from which the defendant appealed to this court, and gave the undertaking required by sections 354 and 356 of the Code of Procedure, which was approved by the district justice and filed with the clerk of the Court of Common Pleas. After the filing of the undertaking, the plaintiffs issued execution upon the judgment. The defendant moved to set aside this execution : the motion was granted, and the plaintiffs…
1Opinion of the Court
By the Court.*—Hilton, J.
Every intendment must be presumed in favor of the statements contained in the moving affidavit read on the motion below, there having been no papers read in opposition. Prom this affidavit we learn that on a judgment rendered in a district court an execution has been issued to the sheriff; and although an appeal has been taken, and the undertaking therein approved and filed, and a copy thereof approved by our clerk duly served on the sheriff, that officer threatens to levy under the execution and remove the property of the defendant.
The only ground of opposition urged…
2Cited by2 opinions
- Decker v. KitchenNew York Supreme Court · 1880
- Ennis v. BroderickThe Superior Court of New York City · 1879