Elwood v. Gardner
New York Supreme Court
Motion to set aside execution. This action was brought by John B. Elwood against George S. Gardner. The summons was for relief.
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Motion to set aside execution. This action was brought by John B. Elwood against George S. Gardner. The summons was for relief. The complaint .stated, in substance, that plaintiff purchased of defendant, at defendant’s request, a promissory note made by Steele & Yoorhees, induced thereto by defendant’s representation that the makers were good and responsible, and the note would be doubtless paid at maturity; that the makers were in good credit, and had large capital; and that, as a further inducement, defendant said he would indorse the note; and that he was owner of real estate and…
1Opinion of the CourtPratt, J.
The plaintiff obtained an order upon which the defendant was arrested before trial, and no motion has been made to set that order aside.
It is therefore in full force, and the execution against the person of the defendant was regular, and warranted by the state of the case, at the time it was issued.
But although the time has passed within which a motion can be made to set aside the original order of arrest, the authorities cited by the defendant fully show that the question of defendant’s liability to arrest can still be raised by a motion to set aside the execution (Pope v. Newcomb, cited in…
2Cases cited2 opinions
- Smith v. . KnappNew York Court of Appeals · 1864
- Humphrey v. BrownNew York Supreme Court · 1859