Lyons v. Cahill
The Superior Court of New York City
Trial by the court. This action was brought upon an undertaking given on appeal from a judgment, to stay proceedings on the judgment pending the appeal. The defense was that, pending the appeal, and prior to the affirmance, the respondent had disregarded the stay and issued execution. At the trial, defendant offered in evidence an execution on the judgment returned unsatisfied.
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Trial by the court. This action was brought upon an undertaking given on appeal from a judgment, to stay proceedings on the judgment pending the appeal. The defense was that, pending the appeal, and prior to the affirmance, the respondent had disregarded the stay and issued execution. At the trial, defendant offered in evidence an execution on the judgment returned unsatisfied. This was objected to, by plaintiff’s counsel on the ground that it did not appear that the execution was issued by any authority of the plaintiff; and that, without such express authority, her attorney had no power…
1Opinion of the CourtO’Gorman, J.
[After disposing of a question as to the amount recoverable, defendant having proved some credits.]—Whether plaintiff is entitled to recover this amount from the defendant depends on the determination of the question whether the sureties, the survivor of whom is the present defendant, were relieved of responsibility on the appeal bond executed by them, because of the issue of the execution against the judgment debtor in the original action notwithstanding the stay of proceedings consequent on the filing of the bond.
There is no evidence that the plaintiff directed, authorized or sanctioned the…
2Cases cited1 opinion
- Ward v. SandsNew York Supreme Court · 1881