Kelly v. McCormick
New York Court of Common Pleas
Action against a judgment debtor and his sureties, upon a bond or instrument given by him to the sheriff as security for his appearance on the return of an attachment issued against him for a contempt, in proceedings supplementary to execution.
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Action against a judgment debtor and his sureties, upon a bond or instrument given by him to the sheriff as security for his appearance on the return of an attachment issued against him for a contempt, in proceedings supplementary to execution. The complaint averred, that the plaintiff 11 duly recovered a judgment” against the debtor, stating the particulars thereof, and then alleged, “ that such proceedings were thereupon had, supplementary to execution, that the said court, upon the 16th day of October, 1850, duly issued an attachment,” whereof a cop^ was set forth. As no question was…
1Opinion of the CourtBy the Court. Daly, J.
It was not necessary to allege, in the complaint, the issuing and return of an execution unsatisfied, nor that an order had been made for the attachment. The averment of the recovery of the judgment, and that such proceedings were thereupon had, supplementary to execution, that the court issued the attachment under which the instrument sued upon was executed, was sufficient. (See Gilbert v. Cameron, 17 Wend. 59.)
The attachment was not void, even if it was improperly made returnable “ before one of the judges of the court” at chambers. It was voidable only; for the defect, if it be one, was…
2Cases cited2 opinions
- Parke v. Heath & M'CotterNew York Supreme Court · 1836
- Thomas v. CameronNew York Supreme Court · 1837