Wilmerding v. Moon
The Superior Court of New York City
The defendant Moon moved to vacate the order under which he had been arrested, upon affidavits controverting those upon which the order had been granted. The action was upon contract, and it appeared that the plaintiffs had obtained a judgment and had issued an execution against the property of the defendant, and these facts were relied on as a bar to the motion. The application was also resisted upon the merits.
1Opinion of the Court
Oakley, Chief Justice.
I have consulted my brethren upon the preliminary objection raised upon the argument, and we are all of opinion that I am bound to entertain this motion and decide it upon its merits, as disclosed by the affidavits. The fact upon which the plaintiffs’ counsel relied, in our judgment, are no bar to the application.
The only limitation of time which the Code imposes, is that which is necessarily implied in section 204, namely, that the motion to vacate an order of arrest must be made before the justification of bail, and with a single exception that I shall hereafter state,…
2Cited by4 opinions
- Cady v. EdmondsNew York Supreme Court · 1855
- Gaffney v. BurtonNew York Supreme Court · 1856
- Overill v. DurkeeThe Superior Court of New York City · 1856
- Spencer v. Rogers Locomotive WorksThe Superior Court of New York City · 1861