Bowman v. Cornell
New York Supreme Court
APPEAL from a judgment entered upon the report of a referee. On the 17th of July, 1860, the plaintiff recovered, in the Bensselaer county court, a judgment upon appeal against the Troy and Boston Bail Boad Company, for $111.88. On the 6th of August, 1860, an execution was duly issued and delivered to the defendant, then sheriff of Bensselaer county, for collection.
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APPEAL from a judgment entered upon the report of a referee. On the 17th of July, 1860, the plaintiff recovered, in the Bensselaer county court, a judgment upon appeal against the Troy and Boston Bail Boad Company, for $111.88. On the 6th of August, 1860, an execution was duly issued and delivered to the defendant, then sheriff of Bensselaer county, for collection. The Troy and Boston Bail Boad Company, at the time the execution was delivered to the defendant, and for more than sixty days thereafter, were visibly solvent, and the execution perfectly collectible within Bensselaer county. The…
1Opinion of the Court
By the Court,
Miller, J.
When a sheriff neglects his duty and fails to execute process in his hands within the time required by law, when unrestrained by the order of the court or by law, he is allowed but one defense, and that a good excuse for not doing it, to wit, that the defendant had no property out of which he could have made the money had he endeavored ever so faithfully to do so. The law assumes that the debt is lost to the plaintiff if the officer having an execution against the debtor who has abundant means to pay, does not collect it. (Ledyard v. Jones, 3 Seld. 550.)
In this case a…
2Cases cited1 opinion
- Burrall v. VanderbiltThe Superior Court of New York City · 1858
3Cited by9 opinions
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- Glascock v. AshmanCalifornia Supreme Court · 1877
- Knapp v. SweetNew York Supreme Court · 1890
- Jones v. HuterAppellate Terms of the Supreme Court of New York · 1929
- Williamson Mill & Lumber Co. v. ValentineAppellate Division of the Supreme Court of the State of New York · 1923
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