Cramer v.
The Superior Court of New York City
Motion to set aside an execution. The suit was commenced on the 22d of June, 1847, on a note for $800, at three months, made "by the defendant, payable to and indorsed by one Allerton, dated August 7, 1846. The declaration, with a copy of the note, was served on the defendant personally. He appeared by an attorney, and filed a plea setting up that the note was usurious in the hands of the plaintiff, with an affidavit of merits.
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Motion to set aside an execution. The suit was commenced on the 22d of June, 1847, on a note for $800, at three months, made "by the defendant, payable to and indorsed by one Allerton, dated August 7, 1846. The declaration, with a copy of the note, was served on the defendant personally. He appeared by an attorney, and filed a plea setting up that the note was usurious in the hands of the plaintiff, with an affidavit of merits. An inquest was taken and judgment perfected December 19,1848. An execution was returned unsatisfied in February following. An alias execution was issued in Hovember,…
1Opinion of the Court
Sandford, J. (after advising with the Chief Justice,)
said, the court will not try the validity of an insolvent’s discharge upon affidavits. But it does not follow that the execution must necessarily be set aside and the plaintiff subjected to the alleged probability of thereby losing his debt, although he shall succeed in overtm-ning the discharge, and which is now secured by the levy. The proper rale to be adopted, is to retain the levy and direct a reference or an issue to test the validity of the discharge, whenever it is made presumptively to appear that the discharge may be successfully…
2Cited by2 opinions
- Barnes v. GillNew York Supreme Court · 1872
- Stuart v. SalhingerNew York Court of Common Pleas · 1862