Dresser v. Shufeldt
New York Supreme Court
The plaintiff obtained judgment for $148‘68 in May 1845, against the defendant, and issued execution thereon. Since then no other execution was issued until the 27th of May last. In the mean time the defendant had obtained a discharge from his debts under ■ our insolvent law. The last execution was issued without any application to the court, and is now attempted to be sustained on the alleged ground that the discharge was fraudulently obtained.
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The plaintiff obtained judgment for $148‘68 in May 1845, against the defendant, and issued execution thereon. Since then no other execution was issued until the 27th of May last. In the mean time the defendant had obtained a discharge from his debts under ■ our insolvent law. The last execution was issued without any application to the court, and is now attempted to be sustained on the alleged ground that the discharge was fraudulently obtained. The execution was stayed on the defendant giving a bond with sureties conditioned to pay such sum as may be recovered by the plaintiff in any action…
1Opinion of the Court
Mitchell, Justice.
On the question whether an execution can be issued under § 458 of the Code, without leave of the court, after five years from the rendering of the judgment, provided an execution had been issued and returned within that time, Mason, J. decided in the affirmative in 4 How. Pr. R. 257, Pierce vs. Crane; a different opinion seems to be expressed by Harris, J. (id. 101-2), in the Catskill Bank agt. Sanford. I am willing to leave that still an open question.
In 1 How. Pr. R. 181, Bangs vs. Strong, a motion was made to set aside an execution on a judgment recovered in 1838, on the…
2Cited by2 opinions
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- Robens v. SweetNew York Supreme Court · 1888