Legal Opinion

Spencer v. Rogers Locomotive Works

The Superior Court of New York City

Decided September 15, 1861Published

Motion to discharge an attachment. In May, 1861, an attachment was issued in this action against the defendants, who were a foreign corporation, and the sheriff levied it upon property, which he now held.

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Motion to discharge an attachment. In May, 1861, an attachment was issued in this action against the defendants, who were a foreign corporation, and the sheriff levied it upon property, which he now held. Subsequently an order was made, that an inventory and appraisement of the property be made by the sheriff, under section 241 of the Code; but the attorney of the plaintiff waived the appraisement, and consented that the value should be deemed to be the sum of $700, which was much less than the demand in suit. The defendants, having delivered an undertaking under section 241 of the Code, now…

1Opinion of the CourtHoffman, J.

—I think the motion must, be denied. The theory of provisional remedies is, that they give some intermediate and conditional protection and assistance, beforé a judgment has defined the rights of the parties. The judgment in this case, although appealed from, is a perfect absolute judgment, as if affirmed in the highest courts, with its enforcement arrested by the appeal. In the case of an arrest, the applica*181tion for an order must be made before judgment (§ 183); in the case of claim and delivery, before answer (§ 206); in the case of an injunction, before judgment (§ 220).

The .motion to set…

2Cases cited1 opinion

  1. Wilmerding v. MoonThe Superior Court of New York City · 1852

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