Stuart v. Salhinger
New York Court of Common Pleas
Appeal from an order denying motion to set aside an execution. Judgment had been recovered in the Sew York Common Pleas in favor of Sidney H. Stuart against Julius G. Salhinger for $308.93. The defendant was, discharged from his debts by Hon. Thomas W. Gierke, a justice of the Supreme Court, in the First Judicial District, on the petition of creditors having debts amounting to two-thirds of all the debts owed by him, under 2 Rev. Stat., 16. The judgment-creditor, after the…
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Appeal from an order denying motion to set aside an execution. Judgment had been recovered in the Sew York Common Pleas in favor of Sidney H. Stuart against Julius G. Salhinger for $308.93. The defendant was, discharged from his debts by Hon. Thomas W. Gierke, a justice of the Supreme Court, in the First Judicial District, on the petition of creditors having debts amounting to two-thirds of all the debts owed by him, under 2 Rev. Stat., 16. The judgment-creditor, after the granting of the discharge, issued an execution upon the judgment. The judgment-debtor now moved upon the discharge to set…
1Opinion of the Court
By the Court.*—Daly, F. J.
an execution has been issued and a levy made, I see no objection to pursuing the course that was adopted in the case of Cramer (3 Sandf. 700); that is, where a motion is made to set the levy aside, or for a perpetual stay of proceedings, and the plaintiff in answer to the motion sets up that the discharge was improperly procured, and shows by affidavit on his part that there is ground for so believing, to retain the lien acquired by the levy, and order issues to be framed, that the question may be tried by a jury. All that had been decided previously was, that the…
2Cases cited5 opinions
- Rusell v. PackardNew York Supreme Court · 1832
- Reed v. GordonNew York Supreme Court · 1823
- Noble v. JohnsonNew York Supreme Court · 1812
- Cole v. StaffordNew York Supreme Court · 1803
- Cramer v.The Superior Court of New York City · 1851