Cheney v. Garbutt
New York Supreme Court
Motion to set aside execution against defendant's person. The action was commenced by the service of a summons and complaint on the 8th of January 1851. The uomplaint claimed that the defendant was indebted to the plaintiff on contract in the sum of ~60S4 and interest, for a bill of goods purchased of the plaintiff by the defendant on the 28th September 1850, for which sum, with interest from the time of the purchase, the plaintiff demanded judgment with costs.
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Motion to set aside execution against defendant's person. The action was commenced by the service of a summons and complaint on the 8th of January 1851. The uomplaint claimed that the defendant was indebted to the plaintiff on contract in the sum of ~60S4 and interest, for a bill of goods purchased of the plaintiff by the defendant on the 28th September 1850, for which sum, with interest from the time of the purchase, the plaintiff demanded judgment with costs. The defendant did not answer, and the plaintiff, on the 3d February 1851, entered judgment for the amount claimed. An execution was…
1Opinion of the Court
Welles, Justice.
The defendant moves to set aside the execution against his person upon the ground that the complaint contained no allegation which would authorize his being charged in execution upon the judgment; that as there was nothing stated in the complaint which he could deny, or answer, so as to put the plaintiff to a trial, and as the order for his arrest was made on an ex parte application, he has had no opportunity of controverting the allegation of fraud.
The 4th and 5th subdivisions of § 179 of the Code authorize the arrest of the defendant in cases where he has been guilty of…
2Cited by1 opinion
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