Cooper v. Bailey
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, William Trist .Bailey, from an Order of the Supreme Court, made at- the Kings County. Special Term and entered in the office of the clerk of the county of Suffolk on the 23d day of November, 1901, denying the defendant’s motion to vacate and set. aside an execution issued upon the plaintiff’s judgment theretofore entered in the action, and to enjoin the plaintiff from issuing an execution upon said judgment.
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Appeal by the defendant, William Trist .Bailey, from an Order of the Supreme Court, made at- the Kings County. Special Term and entered in the office of the clerk of the county of Suffolk on the 23d day of November, 1901, denying the defendant’s motion to vacate and set. aside an execution issued upon the plaintiff’s judgment theretofore entered in the action, and to enjoin the plaintiff from issuing an execution upon said judgment. The plaintiff has a judgment against the defendant of March 5, 1892, for $4,980, which has not been paid. At the time the judgment was recovered the property of…
1Opinion of the Court
Jenks, J.:
I think that the order should be affirmed. The plaintiff could issue execution at any time within five years after the entry of judg*360ment. (Code Civ. Proc. § 1375.) But after five years, issue of execution was prohibited, without an order of leave made by the court,, unless during that period an execution had been issued and returned, wholly or partly unsatisfied or unexecuted. (Id. § 1377,) As it appears in. this case that such execution had been issued within the-said five years, the issue of the second execution was the legal right: of the plaintiff, and no application to the…
2Cases cited6 opinions
- Van Rensselaer v. . WrightNew York Court of Appeals · 1890
- Faneuil Hall National Bank v. BussingNew York Court of Appeals · 1895
- Kennedy v. . ThorpNew York Court of Appeals · 1872
- Brown v. . ChubbNew York Court of Appeals · 1892
- Wade v. . De LeyerNew York Court of Appeals · 1875
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